Land Use Prof Blog

Buchanan v. Warley Centennial Symposium on Race & Zoning

On November 5, 1917, the U.S. Supreme Court struck down Louisville’s race-based zoning ordinance in a landmark case, Buchanan v. Warley. The centennial of this famous case will be marked on Friday, November 10, 2017, at the University of Louisville Brandeis School of Law with a national symposium on Racial Justice in Zoning: 100 Years after Buchanan. The symposium will explore current racial injustices in land use, housing, and environmental conditions, as well as the history of race and zoning in the U.S. and Louisville. It will feature presentations on eight nationally renowned scholars, as well as a presentation on redlining in Louisville.

 

The symposium begins at 8:30 a.m. and ends at 2:30 p.m. on Friday, November 10, and will be held in Room 275 of Wyatt Hall, which is the Brandeis School of Law on the University of Louisville’s Belknap campus, 2301 S. Third Street. The symposium is free and open to the public, and includes a free light continental breakfast at approximately 8:30 a.m., and a free lunch at approximately 1:00 p.m., both on a first-come, first-serve basis until food runs out. Please do not confirm your attendance; just come. If you have questions, please contact Tracie Cole at [email protected] or 502-852-1230. Individuals requiring accommodations should also contact her as soon as possible.

 

All attendees will be responsible for finding and paying for their own parking. Visitor parking passes are available for purchase through the U of L Parking website.  On this page, you are able to pay for and print your visitor permit that you will place on the dash board of your car while you are parked on campus.  You are also able to view maps and directions to campus.  To obtain your visitor pass, click on “Printable Visitor Permits”, under “Permits” click on “Get permits” and under “Customer Authentication, click on “create a guest account”.  From here, you will create an account, and be able to select the $5 per day printable visitor permit.  You are able to park in the Green Lot on 3^rd Street across from the Reynolds Lofts. The UofL Parking website also contains information about other visitor parking options, such as the lot at 4^th and Cardinal or the Floyd Street Garage, which charge based on the length of time you park. Also, the Speed Museum (not the University) operates a parking garage next to the Speed Museum on Third Street, which charges by the hour.

 

The symposium is sponsored by the University of Louisville Brandeis School of Law, with support from the Caudill-Little Speakers Fund, and co-sponsored by the Anne Braden Institute for Social Justice Research at the University of Louisville.

 

The details of the symposium schedule and speaker information are provided below:

 

Buchanan v. Warley Symposium Agenda

Racial Justice in Zoning: 100 Years after Buchanan

Friday, November 10, 2017

 

8:30 a.m.: Light continental breakfast

8:40 a.m.: Dean's Welcome: Lars Smith, Interim Dean

8:50 a.m.: Organizers' Welcome: Tony Arnold, Symposium Chair

 

Session I: The History of Race, Zoning, and Buchanan Case

9:00 a.m.: Cate Fosl, The Buchanan Case and the Long Movement for Civil Rights in Louisville

9:20 a.m.: Laura Rothstein, What Would Louis Do?  The “Brandeis Brief” on Zoning and Its Present Impact on Racial Segregation

9:40 a.m.: Michael Wolf, Caudill-Little Distinguished Presenter, There’s Something Happening Here: Affordable Housing as a Nonstarter in the U.S. Supreme Court

10:20 a.m.: Q&A for Session I

10:30 a.m.: Break

 

Session II: Contemporary Perspectives on the Persistence of Racial Inequality in Land Use

10:40 a.m.: Cedric Merlin Powell, Race Displaced: Buchanan v. Warley and the Neutral Rhetoric of Due Process

11:00 a.m.: Michael Lens, Caudill-Little Distinguished Presenter, Why Segregation Matters: The Inequality of Opportunity

11:40 a.m.: Audrey McFarlane, Caudill-Little Distinguished Presenter, The Properties of Integration: Managing Discrimination Through Mixed Income Housing

12:20 p.m.: Tony Arnold, From Zoning Injustice to Environmental Injustice to Resilience Injustice

12:40 p.m.: Q&A for Session II

12:50 p.m.: Break

 

Session III: Luncheon Keynote

1:00 p.m.: Lunch

1:10 p.m.: Keynote by Sheryll Cashin, Caudill-Little Distinguished, Integration as a Means of Restoring Democracy and Opportunity

1:50 p.m.: Q&A for Keynote

 

Session IV: Bringing It Home

2:00 p.m.: Jeana Dunlap, Redlining Louisville: The History of Race, Class and Real Estate

2:15 p.m.: Final Remarks by Organizers and Conclusion

2:30 p.m.: Symposium Ends; Book-Signing by Sheryll Cashin

 

Speakers:

Craig Anthony (Tony) Arnold, J.D. is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility.

Sheryll Cashin*, M.A., J.D., is Professor of Law at Georgetown University, and an active member of the Poverty and Race Research Action Council.

Jeana E. Dunlap, M.P.A., M.S., is the Director of Redevelopment Strategies, Louisville Forward.

Catherine Fosl, Ph.D., is Professor of Women's and Gender Studies at the University of Louisville, where she also teaches in the History Department and directs the Anne Braden Institute for Social Justice Research.

Michael Lens*, Ph.D., is Associate Professor of Urban Planning at the UCLA Luskin School of Public Affairs, where he is the Associate Faculty Director of the UCLA Lewis Center for Regional Policy Studies.

Audrey McFarlane*, J.D., is the Dean Julius Isaacson Professor of Law at the University of Baltimore.

Cedric Merlin Powell, J.D., is Professor of Law at the University of Louisville Brandeis School of Law, where he is the Interim Associate Dean for Academic Affairs.

Laura Rothstein, J.D., is a Distinguished University Scholar and Professor of Law at the University of Louisville Brandeis School of Law.

Michael Allan Wolf*, J.D., Ph.D., is the Richard E. Nelson Chair in Local Government Law and Professor of Law at the University of Florida Levin College of Law.

* denotes Caudill-Little Distinguished Presenter

Land Use and the Law of Armed Conflict

What does the law of land warfare have to do with the law of land use? Quite a lot, actually. Greetings from the Clara Barton International Humanitarian Law Competition,  sponsored by the American Red Cross and its IHL Section. Several property law issues are prevalent in the law of armed conflict.

I’m coaching my South Texas team (sponsored by the Frank Evans Center for Conflict Resolution) in this unique event that challenges students to advocate and role-play in realistic scenarios involving international humanitarian law (IHL), also known as the law of armed conflict (LOAC) or more traditionally, the law of war.

The LOAC/IHL is mostly focused on protection of persons, but it also covers a lot of property law. The bottom line is that wars and armed conflicts involve a lot of property issues—the rules about what actions armed forces can or must take with regard to public and private, real and personal property. There is a complex international law regime, codified through the Geneva and Hague Conventions, the UN Charter, and other treaties and customary international law, that deals with land and property rights.

Here at the American Red Cross IHL competition (named for ARC founder Clara Barton, who performed medical and humanitarian assistance during the Civil War, including a field hospital at the Fairfax church where I was married(!)), the scenarios included detainee interviews, targeting decisions, public relations, and international criminal court arguments. Several of the scenarios involved issues of seizure, occupation, requisition, and cultural protection of property. Other armed conflict issues include claims, restitution, and post-conflict governance questions such as titles, registration, and resolving property disputes. These property issues are governed by the international law of armed conflict.

While most of the public perception of the Red Cross is based on its important missions of disaster relief and blood donations, the movement was founded to establish and enforce international humanitarian law in the wake of disastrous nineteenth-century battles. The ICRC is the world's lead organization on this and you can read its Intercross blog; the ARC also has an important IHL section with the mission to educate, train, and promote IHL, which you can read about at the Humanity in War blog. 

As some of you know, I have been busy over the past few years in my Army Reserve assignment as an Associate Professor of International & Operational Law at the U.S. Army Judge Advocate General’s School in Charlottesville, Virginia. I’ve been focused more on the law of land warfare than the law of land use. That’s why I haven’t been blogging much here at the Land Use Prof Blog, while Stephen Miller has been outstanding in continuing to lead this crucial forum for the land use academic community. Going forward, I plan to contribute some thoughts about the relationship between land use and the law of armed conflict, and more broadly, international property law . . . and also get back to blogging about land use here in the "unzoned city" of Houston.

Matt Festa

More on Scalia's Land Use Legacy

Yesterday our fearless leader, Stephen R. Miller, blogged about Justice Scalia's three most important land-use-related decisions.  I agree with his assessment that Nollan and Lucas are two of the most influential takings cases ever decided, and certainly Rapanos' change in wetlands regulation are had a dramatic effect on the development industry and control of water quality (although arguably Justice Kennedy's concurrence with its "significant nexus" test is more relied upon by regulators).

Inspired by Stephen, I perused the list of Scalia-authored opinions and found a couple more of interest.  In the vein of my previous post about how Scalia's passing will likely result in the survival of President Obama's Clean Power Plan, I also think Scalia's decision in Michigan v. EPA was highly influential. It held that the EPA must consider cost when deciding whether regulations under the Clean Air Act is "appropriate and necessary." (Bob Sussman wrote about the impact of Michigan v. EPA for the Brookings last summer.)

Also, a somewhat lesser known but important Scalia-authored case was City of Columbia v. Omni Outdoor Advertising (1991), in which the court upheld anti-trust immunity for local governments enacting zoning restrictions - in this case, those that regulated signs. (Linda Greenhouse covered the case for The New York Times.) Although this case lacks the colorful language of some of Scalia's more recent opinions (primarily dissents), it is interesting reading for those of us who care about the limits of local government police power.

Jamie Baker Roskie

 

 

Interdisciplinary Readings on Land Use: Land Ethics

Individual and collective decisions about the use of land are fundamentally normative decisions, whether consciously made on the basis of a set of ethics and norms or reached through governance systems with implicit, imbedded normative underpinnings.  What do ethicists have to say about land use that could be interesting to land use legal scholars?  Quite a lot, it turns out. 

If you have time to read only one book on the topic, I’d highly recommend Timothy Beatley, Ethical Land Use: Principles of Policy and Planning (Johns Hopkins University Press 1994).  When I taught a land use seminar at Chapman University School of Law, I assigned this 300-page paperback book that covers land use from a diverse range of ethical perspectives.  The outline of the book is as follows:

Part I: Ethical Framework

1. Land-Use Policy and Ethical Choices

2. The Nature of Ethical Discourse about Land Use

Part II: Sets of Land-Use Ethics and Obligations

3. Utilitarian and Market Perspectives on Land Use

4. Culpability and the Prevention of Land-Use Harms

5. Land-Use Rights

6. Distributive Obligations in Land Use

7. Ethical Duties to the Environment

8. Land-Use Obligations to Future Generations

Part III: Ethics and Individual Liberties

9. Paternalism and Voluntary Risk-taking

10. Expectations and Promises in Land-Use Policy

11. Private Property, Land-Use Profits, and the Takings Issue

Part IV: Ethics, Community, and Politics

12. Defining Life-Style and Community Character

13. Duties beyond Borders: Interjurisdictional Land-Use Ethics

14. The Ethics of Land-Use Politics

Part V: Conclusions

15. Principles of Ethical Land Use

Of course, many of you were probably expecting me to recommend Aldo Leopold’s writings on his land ethic, which are wonderful and well worth reading.  Leopold urged a holistic view of the land community as encompassing both nature and humans, and a conservation ethic in how land is used and managed.  The classic is Aldo Leopold, A Sand County Almanac And Sketches Here and There (Oxford University Press 1949), but other collections of his writings are also worth reading, including For the Health of the Land (edited by J. Baird Callicott and Eric T. Freyfogle; Island Press 1999), and The River of the Mother of God and Other Essays by Aldo Leopold (edited by Susan L. Flader and J. Baird Callicott; University of Wisconsin Press 1991).  Julianne Lutz Newton wrote an exciting biography of Leopold: Aldo Leopold’s Odyssey: Rediscovering the Author of A Sand County Almanac (Island Press 2006).  Writings by Wendell Berry and Wallace Stegner, discussed in a previous blog post, also articulate a land and environmental conservation ethic.

As many of you know, legal scholar Eric Freyfogle at the University of Illinois has written a number of highly important interdisciplinary books that integrate land ethics (including the writings of Leopold, Berry, historian Donald Worster, and others) with legal issues.  My favorite remains Bounded People, Boundless Land: Envisioning a New Land Ethic (Island Press 1998), which is unusually articulate, inspiring, and engaging.  Eric has commented on several occasions that he considers some of his later works his best writing, and all are certainly excellent and well worth reading.  Among them are: The Land We Share: Private Property and the Common Good (Island Press 2003), Why Conservation Is Failing and How It Can Regain Ground (Yale University Press 2006), and On Private Property: Finding Common Ground on the Ownership of Land (Beacon Press 2007).  Still, I stick by my special regard for his Bounded People, Boundless Land book.

J. Baird Callicott is a philosopher who has built on Leopold and yet gone beyond Leopold’s perspective with a strongly non-anthropocentric viewpoint.  His books are well worth reading, including In Defense of the Land Ethic (State University of New York Press 1989) and Beyond the Land Ethic: More Essays in Environmental Philosophy (State University of New York Press 1999).  Three other environmental ethics classics with relevance to land use are Holmes Rolston III, Environmental Ethics: Duties to and Values in the Natural World (Temple University Press 1988), Bryan G. Norton, Toward Unity among Environmentalists (Oxford University Press 1991), and Laura Westra, An Environmental Proposal for Ethics: The Principle of Integrity (Rowman & Littlefield 1994). 

Despite the trenchant critique and normative guidance found in many writings on land ethics and conservation philosophies, the reality is that the land use system in the United States is characterized by pragmatism and ethical pluralisms at best.  I discussed this point in my article The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305.  Nonetheless, important ethical imperatives can be found in pragmatic perspectives on land use, as explored in an outstanding book by Ben A. Minteer: The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006).  Minteer examines the ideas of four major land-and-environment thinkers and reformers in the American 20^th Century – Liberty Hyde Bailey, Lewis Mumford, Benton MacKaye, and Aldo Leopold – to illuminate an environmental pragmatism focused more on civic and policy reform than on picking sides in the anthropocentric/land-use versus ecocentric/environmental-preservation debates.  I highly recommend this informative and well-written book. 

By now (if you made it this far!), you’ve probably noticed that most of these writings involve environmental ethics and don’t really delve too much into social justice, distributive justice, procedural justice, and the like.  I will tackle some of those issues, albeit mostly at the land use-environment intersection, in my next post on interdisciplinary readings in environmental justice and land use. 

Coming Next: Environmental Justice and Land Use

 

 

Addressing American Indian Land Tenure – by Jessica A. Shoemaker

For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today. 

In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.

    I.    The Indian Land Tenure Challenge

To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice.  Nonetheless, here is a brief overview.

Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.

Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.

This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)

The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).

The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands.  All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests. 

The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs. 

While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here. 

In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country.  In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.

This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.

    II.    Why It Matters

Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task. 

On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.

However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work.  Let me give just two immediate examples, both of which I'm just beginning to work on.  

First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.

Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.

This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.

Thanks again for the opportunity to discuss this and other issues here this month.

-          Jessica A. Shoemaker

Historic Preservation During an Age of Fiscal Pressure

Funds for historic preservation programs, particularly those dealing with identifying, cataloguing, and managing historic resources, are typically slashed when the economy sputters.  Right now is such a time.  In my previous post, I discussed ARCHES--a free, online, user-friendly, open-source geospatial software system developed by the Getty Conservation Institute and the World Monuments Fund that is purpose-built to inventory and manage immovable heritage to internationally adopted standards.  Anyone can downloand and customize ARCHES to suit their needs.

Today I want to discuss a powerful, innovative but cheap technological tool that can aid authorities in their quest to create and/or update their historic resources digital inventory:  online crowdsourcing.  Simply put, online crowdsourcing allows someone to obtain needed services and/or content by soliciting voluntary contributions from the online public community rather than hiring employees or paying suppliers.  Online crowdsourcing has been an extremely effective tool for preserving cultural heritage in many countries.  For instance, the National Library of Finland is using online crowdsourcing to index its scanned archives.  Similarly, the University of Cape Town in South Africa is using online crowdsourcing to transcribe collections containing the Bushman’s language, stories, and way of life.  The National Geographic Society is using online crowdsourcing to analyze millions of satellite images of Mongolia showing potential archaeological sites in the hopes of discovering the tombs of Genghis Khan and his descendants.  And an English non-profit organization has utilized online crowdsourcing and online crowdfunding—funds donated by the interested public online—to provide both finances and labor for an expert-led excavation of a Bronze Age causeway composed of millions of timbers in the Cambridgeshire fens.  And perhaps most relevant to experiences of local governments in the United States, the City of Los Angeles has created a website, MyHistoricLA.org, that allows citizens to map and submit information about places of cultural importance to them which may not be architecturally significant (and thus escape the purview of preservation officials).   

Drawing on the crowdsourcing experience of others, local governments and cities in the United States could create an online portal attached to their own digital inventories, or create an appended website like MyHistoricLA.  This portal or website could offer training modules to citizens on cultural heritage recording practices and afterwards ask them to collect and upload descriptive information, statistics, pictures, videos, and maps on historic resources in their neighborhoods.  The information uploaded to this portal could be screened and vetted by authorities before permanently adding it to the digital repository, ensuring quality control.  In this way, local governments and cities could gather and preserve vast amounts of data related to their cultural heritage in a short period of time and at minimal cost.  Furthermore, such a strategy also fosters civic pride, a sense of community, and a deeper, more tangible connection to the city’s past, particularly for younger generations who are adept at using technology.  It also offers peace of mind knowing that if and when a disaster occurs that as much cultural heritage as possible has been preserved for future generations. 

Boyd on Zoning for Apartments

Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013).  In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:

This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.

Jim K.

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

Overdrive--Getty Exhibition on LA Development

This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum.  It is a spectacular place for many reasons including land use and architecture.  Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990.  It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.  

My family and I really enjoyed the exhibition (as well as the Getty experience overall), so I encourage you to check it out, if possible, before it closes on July 21.  Even if you can't get there, I'd recommend the book about the Overdrive exhibition, which has most of the images.  

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Matt Festa

Schindler on Banning Lawns

Sarah Schindler (Maine) has posted Banning Lawns, forthcoming in the George Washington Law Review (2014).  The abstract:

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.

In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

Prof. Schindler has been working on this project and presented it at ALPS previously-- it will serve as a foundational article on the debate that is going to happen (whether or not you knew it) on the future of the American Lawn!

Matt Festa

Sullivan & Clark on The Oregon Approach to Public Facilities and Services

Edward J. Sullivan (Portland State) and Benjamin H. Clark (Independent) have posted A Timely, Orderly, and Efficient Arrangement of Public Facilities and Services--The Oregon Approach, 49 Willamette Law Review 411 (2013).  The abstract:

The provision of public facilities and services is not an exciting planning topic because it deals with the details of supply, rather than the grander issues of economics, social equity and policy. Yet these details occupy an inordinate amount of time and attention by planners, elected officials, and other policy-makers, and account for a substantial share of unresolved issues in planning law.

This Article sets out the rise of infrastructure planning policy in Oregon under a statewide land use planning system that began in 1973.1 In Part I, we give a brief history and description of the structure of that system, followed by a discussion of the evolution of state infrastructure policy under Statewide Planning Goal 11, Public Facilities and Services, and its implementing rules. Following this background, this Article will examine the application of that policy, particularly with respect to the mechanics (Part II) and financing (Part III) of infrastructure planning and its role in the reinforcement of the separation of urban and rural uses (Part IV).

Oregon is one of the leading examples of the comprehensive approach to land use regulation, and any study of the state's approach--particularly one from lawyers who have been involved in the issues--will be a valuable additon to the literature in the field.

Matt Festa

Burger on the Last, Last Frontier

Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013.  The abstract:

Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.

Matt Festa 

Blumm & Erickson on Wild Lands Policy in the Twenty-First Century

Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been.  The abstract:

The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations. 

This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.

Matt Festa

Brinig & Garnett on Accessory Dwelling Unit Reforms and Local Parochialism

Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013).  The abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

This looks really interesting.  Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country.  These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing. 

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

Edwards on the Paradoxes of Restitution

Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review.  The abstract:

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.

Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.

After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution. 

Matt Festa

Church Fire in Athens

So I've been taking something of a break from blogging during my quasi-sabbatical, but I got a powerful lesson about the power of place this week, something that seemed worth sharing.  

Monday night Oconee Street United Methodist Church in Athens experienced a terrible fire.  This is the church my husband and I attended in Athens, and it's been powerful to see the effect of the fire on the community.  At first there was shock and grief but very quickly the community began to rally. The church is the home of the local soup kitchen, and only hours after the blaze they were serving breakfast in front of the still smoldering building.  A campaign has begun to restore the historic structure (originally built in 1903).  This church is an Athens institution, popularly known as the "church on the hill."

A few years ago I blogged about the rebuilding of another Athens insitution gutted by fire, the Georgia Theater.  The community banded together to help finance the two year rebuilding process, and the theater re-opened better and more beautiful than ever in 2011.  Here's hoping the same thing can happen with this wonderful little community church!

Jamie Baker Roskie

 

Happy Dyngus Day 2013

Happy Dyngus Day!  As everyone surely knows, the Monday after Easter is celbrated as Dyngus Day in Poland and in some U.S. cities with Polish-American cultural history.  At the Land Use Prof Blog we like to feature holdiays that have historical and cultural roots that also involve local politics, community events and neighborhood effects--and therefore, land-use tie-ins.  So here's a link to last year's post on Dyngus Day and land use.  

So today's the day to get a pussywillow branch to chase around that special someone--no April Foolin', even if CNN's Anderson Cooper thinks it's funny and stupid. If I lived in Buffalo or South Bend (e.g.), I'd drop everything today and get down to the Dyngus Day celebrations!

Matt Festa

Sawers on History, Fourth Amendment Searches, and the Right to Exclude

Brian Sawers (Maryland) has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's, forthcoming in Michigan Law Review First Impressions, Vol. 111, p. 21 (2013).  The abstract:

Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.

Matt Festa

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