Land Use Prof Blog

Ruhl on Ecosystem Services and Federal Public Lands

J.B. Ruhl (Vanderbilt) has posted Ecosystem Services and Federal Public Lands: Start-Up Policy Questions and Research Needs, Duke Environmental Law & Policy Forum, 2010.  The abstract: 

This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.

Matt Festa

Memorial Day & Land Use

The U.S. tradition of Memorial Day has a long and complex relationship with land, history, and memory.  This post has some thoughts on the subject from last year.

Today was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blogposts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

Check out the whole post for some info about a couple of little-known and interesting events from the early history of Memorial Day and land use, including what may be the first Memorial Day celebration, by African-Americans in Charleston on the former planters' racecourse, and a U.S. Supreme Court case about eminent domain for historic preservation on Gettysburg National Battlefied.

We hope you had a safe and happy Memorial Day.

Matt Festa

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.

 

The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.

 

The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.

 

The press release (PDF) and report (PDF) are now available online.

 

Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning

 

Matt Festa

Bipartisan Policy Center Housing Commission Report

I am just finished streaming the press conference for the release of the Bipartisan Policy Center's Housing Commision Report.  Led by its Co-Chairs, Sens. George Mitchell, Mel Martinez and Kit Bond, as well as former HUD Secretary Henry Cisneros, the Commission is offering a far-reaching set of recommendations regarding the housing finance system, public subsidy for affordable housing development and preservation (particularly in rural areas) and promotion of housing counseling as a vital resource.  Even if the Executive Summary is too long for you, I would encourage you to check out a two-page article available on Politico authored by the four co-chairs.   

Jim K.

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

Craig on Treating Offshore Submerged Lands as Public Lands

Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013).  The abstract:

When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.

Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.

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

Johnson on the Economic Crisis, Homeownership, and Race

Marcia Johnson (Texas Southern) has posted Will the Current Economic Crisis Fuel a Return to Racial Policies that Deny Homeownership Opportunity and Wealth to African Americans?, published in The Modern American, Volume 6, Issue 1, Spring 2010.  From the introduction:

Perhaps the greatest threat to the continued realization of the American dream is the latest economic crisis rooted in the sub-prime mortgage collapse.12 Some blame the CRA of 1977 for creating a market that they claim provided housing loans to noncreditworthy borrowers – particularly African American families – in the low and moderate income range.13 However, this charge is without direct factual support as the post-CRA period saw a decline in homeownership for African Americans but a mild increase for White homeowners.14 Illegal and fraudulent practices in property appraisals and income reporting directed program benefi ts away from those the program was meant to aid. . . .

This paper is written to examine the potential effect of the market collapse on our nation’s homeownership policies. Part I reviews America’s historical housing and homeownership policies. Part II considers the expansion of homeownership opportunities to historically non-participating communities, particularly the African American community. Part III reviews the culprits of the economic crash of 2008 and explains why sub-prime borrowers often get blamed. Part IV examines solutions to maintain America’s pro-homeownership policy, and Part V concludes that America’s homeownership policy should continue to be vigorously pursued with a goal of including African Americans who have long been excluded by government policies and sanctions from building wealth and thereby stabilizing their communities.

Matt Festa

Hirokawa on Euclid to Federal Environmental Law in Northern Ohio

Keith Hirokawa (Albany) has posted From Euclid to the Development of Federal Environmental Law: The U.S. District Court for the Northern District of Ohio and the Regulation of Physical Space, forthcoming in Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio, Paul Finkelman and Roberta Alexander, eds., (2012, Ohio University Press).  The abstract:

In 1969, the Cuyahoga River burned. Although it was not the first time that the River was in need of assistance, it was the 1969 fire that helped to compel a radical transformation in the way that we interact with the environment. The U.S. District Court for the Northern District of Ohio was not called upon to adjudicate the liabilities resulting from this pivotal event. But in the years preceding the Cuyahoga fire, the district court was asked to navigate conflicting jurisprudential approaches to the use of land, air, and water. This chapter explores a handful of these cases in order to illustrate the nation's struggle over suspicious conceptions of economic advantage and fairness, flexible distinctions of private and public property, and evolving ideas of nature and health. The chapter begins with the 1924 decision in Ambler Realty Corporation v. Village of Euclid, which remains the most famous challenge to the constitutionality of zoning regulations. It then turns to the 1930 decision in Swetland v. Curtiss Airports Corporation, where the district court addressed the inevitable limitations in property rights above land following the advancement of powered human flight. Finally, it considers an opinion released on the eve of the Cuyahoga River fire, when the court was asked to choose between saving a town and protecting railroad operations in Biechelle v. Norfolk Western Railway Company. Although the district court's decisions in these controversies do not bear the indelible character that we often attribute to law, the federal district courts for the Northern District of Ohio contributed to a legal framework in which the fire could occur and, perhaps more significantly, in which the fire could be perceived as an important event.

It's true that Northern Ohio has been at the forefront of the development of modern land use law!  Land use and legal history are more connected than might be apparent.  The entire volume looks worth reading.

Matt Festa

Proposed Final Settlement in Baltimore Fair Housing Case

The Baltimore Sun reported this past weekend on the proposed final settlement in Thompson v. HUD, a fair housing case that dates to 1995. 

The case arose when the American Civil Liberties Union of Maryland sued HUD, saying that it demolished old public housing high-rises where mostly African-Americans lived — only to move the residents to equally segregated housing and poor conditions in other parts of the city.

Attorneys for the residents said Friday that the government in effect “perpetually locked” African-American families in neighborhoods of concentrated poverty, violating federal civil right laws. The settlement, which would cover all claims in the case, was filed in conjunction with Baltimore City and the Housing Authority of Baltimore City.

As the Legal Defense Fund, which worked with the ACLU on the case, notes in its press release, the court had ruled in 2005 “that the U.S. Department of Housing and Urban Development (“HUD”) violated the Fair Housing Act by unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.  Judge Garbis held that HUD must take a regional approach to promoting fair housing opportunities throughout the Baltimore Region.” 

The settlement requires HUD to allocated money towards expansion of the Baltimore Housing Mobility Program, which has been in place since a partial settlement in the 1990s.  The program has enabled over 1,800 families to move to neighborhoods in other parts of the city and to surrounding suburbs.  Under the settlement, the program will, among other things, fund vouchers and counseling over the next seven years for up to 2,600 additional families.

The case is particularly interesting given its regional approach to questions of housing and segregation.  Housing vouchers can be used throughout the region, enabling participants to voluntarily move to suburban areas with greater employment and educational opportunity.  The program provides extensive housing counseling and mobility assistance to aid families interested in moving to lower-poverty neighborhoods.  For more details, see this  2009 report discussing the progress of the program at that time. 

John Infranca

Stern on Property's Constitution

James Y. Stern (Virginia) has posted Property's Constitution, forthcoming in the California Law Review.  The abstract:

Long-standing disagreements over the meaning of property as a matter of legal theory present a
special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.

This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.

Matt Festa

Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation

Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation?  The abstract:

Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.

The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.

While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.

Matt Festa

Krakoff & Rosser book on Tribes, Land, & the Environment

Sarah Krakoff (Colorado) and Ezra Rosser (American U) have posted Tribes, Land, and the Environment (Introduction), the intro to their new book TRIBES, LAND, AND THE ENVIRONMENT, Sarah Krakoff & Ezra Rosser eds., Published by Ashgate, ISBN 978-1-4094-2062-0, 2012.  The abstract:

About the book: Legal and environmental concerns related to Indian law and tribal lands remain an understudied branch of both indigenous law and environmental law. Native American tribes have a far more complex relationship with the environment than is captured by the stereotype of Indians as environmental stewards. Meaningful tribal sovereignty requires that non-Indians recognize the right of Indians to determine their own relationship to the land and the environment. But tribes do not exist in a vacuum: in fact they are deeply affected by off-reservation activities and, similarly, tribal choices often have effects on nearby communities. This book brings together diverse essays by leading Indian law scholars across the disciplines of indigenous and environmental law. The chapters reveal the difficulties encountered by Native American tribes in attempts to establish their own environmental standards within federal Indian law and environmental law structures. Gleaning new insights from a focus on tribal land and property law, the collection studies the practice of tribal sovereignty as experienced by Indians and non-Indians, with an emphasis on the development and regulatory challenges these tribes face in the wake of climate change. This volume will advance the reader's knowledge and understanding of these challenging issues.

Prof. Rosser also sends along the links to the Ashgate publisher's page and to the Table of Contents.  There are a lot of land use issues involved here and it's definitely a book worth checking out.  Contributions include essays by the two editors and our own Jessica Owley, among other thoughtful writers.

Matt Festa

Bronin & Byrne Casebook on Historic Preservation Law

Sara C. Bronin (Connecticut) and J. Peter Byrne (Georgetown) recently published a new casebook called Historic Preservation Law, Foundation Press 2012.  HP is quickly becoming a central part of land use planning, as the authors make clear in this excerpt from the Preface:

This book was written for anyone interested in the increasingly important area of historic preservation law.  With this book, we hope to advance and encourage the teaching of preservation law, shape the way the field is conceived, and create a practical resource that will be consulted by attorneys and other preservation professionals. 

Our approach to the subject is reasonably straightforward.  We present the most significant legal issues in preservation and place them in a contemporary context, identifying contested questions and areas of reform.  The format of the book is traditional: edited leading cases with notes that provide explanation, extension, and issues for discussion.  Given the interdisciplinary nature of the field, we belive that the legal issues can only be understood in light of historical, aesthetic, political, and administrative issues that make up the larger realm of preservation.  Accordingly, we provide secondary materials, both legal and non-legal.

Because we focus on preservation of buildings and sites, we present preservation as part of land use or urban development law.  Thus, we provide extensive treatment of local preservation law, which regulates private property, as well as relevant issues in real estate finance and project development.  We also provide comprehensive treatment of federal law, including the National Historical Preservation Act and related statutes.  In addition, we explore federal laws that address preservation vis-a-vis cultural property issues, particularly regarding Native American and archaelogical sites.  Preservation has also generated important and interesting constitutional questions related to takings, religious freedoms, and free speech rights, which we address.

This is the first, or at least the most recent, major casebook on the law of historic preservation that I know of.  Professors Bronin and Byrne, who are also accomplished scholars in the land use field generally, have provided us a major contribution with this book, which looks to be *the* significant text in HP law.  Land use scholars and professionals should definitely have this one on their shelves.

Matt Festa

Salkin on the Quiet Revolution and Federalism

Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012).  The abstract:

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.

This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.

Matt Festa

Piekielek and Hansen on Land Use Near National Parks

The authors study land use near national parks and how those land uses affect biodiversity in the parks. The article is helpful for its results but also the methodology of studying and comparing land uses.

Extent of fragmentation of coarse-scale habitats in and around U.S. National Parks by Nathan B. Piekielek, Andrew J. Hansen -- Biological Conservation, Volume 155 (2012)

U.S. National Park Service land managers face a variety of challenges to preserving the biodiversity in their parks. A principle challenge is to minimize the impacts of surrounding land use on park condition and biodiversity. In the absence of ideal sets of data and models, the present study develops methods and results that demonstrate a coarse-filter approach to understanding the effects of land use change on habitat types for four pilot study-areas. The area of analysis for each park is defined by a protected-area-centered-ecosystem. Habitat types were defined by biophysical factors assumed to represent the distribution of vegetation communities as they may have existed prior to European settlement.

Present-day land use was overlaid on historical habitat and change in area and pattern was quantified for private and public lands separately. Results suggest that patterns of development are affecting study-areas differently. Therefore, the conservation challenges faced by each study-area are distinct to their landscape contexts. For some parks, the primary challenge is to work towards maintaining ecosystem condition in its present or near-present state while paying particular attention to habitats that are underrepresented on public lands. For other parks, the challenge is to address spatially aggregated land use that is affecting only a few habitat types. For still other parks, the challenge is to maintain connectivity with a regional network of protected lands and to undertake restoration projects where feasible. The present methods and results help to focus conservation attention on habitats that have been most impacted by land use change.

Jessie Owley

Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum

Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer. 

I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research.  Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism. 

Congrats to both, and way to represent those of us in the property and land use junior ranks!

Matt Festa

Disputes over Westchester Housing Settlement Continue

    Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues.  By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing."  The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law.  The DOJ intervened and negotiated a settlement on behalf of HUD.  The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing.  The County also must affirmatively market the housing in surrounding areas with significant non-white populations.  The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process). 

    The County argues that it is complying with the settlement and is ahead of schedule in constructing the units.  However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns.  The County has responded that the cost and availability of land restrict the options available.  The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement.  In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.

        The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice.  HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary.  The County's AI concluded that no exclusionary housing existed in its municipalities.  Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach. 

The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan."  It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary.  Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement. 

HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.  

John Infranca

 

Ryan on Obamacare, Federalism, and . . . Land Use

No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour.  Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues.  From Obamacare and Federalism's Tug of War Within:

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

. . . .

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.

Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision.  Professor Ryan has a new book on the subject called Federalism and the Tug of War Within. 

And, so yes, there is a land use angle to the Obamacare decisions.  But you already know that there's a land use angle to everything. 

Matt Festa