Sunday, March 27, 2011

Lind on Public Nuisance Law and Bank Foreclosures

This blog has had the good fortune to feature the amazing work of Cleveland-Marshall's Urban Development Law Clinic (here and here, too) as well as dispatches from the front lines of the foreclosure fallout in Cleveland's neighborhoods from the Clinic's outgoing director, Kermit Lind (Cleveland State).  Kermit has now posted Can Public Nuisance Law Protect Your Neighborhood from Big Banks?, 44 Suffolk L. Rev. 89 (2011).  Here's the abstract:

One manifestation of the mortgage crisis of the past decade is the destabilization of housing markets and neighborhoods where mortgage defaults were concentrated. As banks and their mortgage servicers employ business practices that result in banks or their agents controlling or owning vacant dwellings, the noncompliance with housing and other municipal codes by these institutional absentee owners presents neighborhoods and cities with a huge and costly public nuisance problem.

This article explores both the theory of public nuisance law and the experience of applying nuisance law in practice to mitigate the harmful consequences of bank debt collection and REO management. It looks at how and to what extent public nuisance law provides protection for those non-defaulting homeowners whose health, safety and welfare are threatened by the business practices of big banks. It compares litigation that applies public nuisance law in different ways to distinguish viable uses from unsuccessful uses of public nuisance law doctrine. The recent efforts to use public nuisance law against manufacturers and marketers of harmful products like guns and tobacco are distinguished from the application of public nuisance law against owners of real estate maintenance deficiencies are in violation of laws protecting the public health, safety and welfare.

Jim K.

March 27, 2011 in Crime, Economic Development, Financial Crisis, Local Government, Mortgage Crisis, Mortgages, Nuisance, Redevelopment, Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 22, 2011

Smith and Bailey on Restrictive Zoning for Adult Uses/Sexually Oriented Businesses

George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011).   Here's the abstract:

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.

Jim K.

March 22, 2011 in Constitutional Law, First Amendment, Judicial Review, Local Government, NIMBY, Nuisance, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, February 24, 2011

Meyer on Community Participation in Environmental Cleanup Decisions

The last installment in the Cityscape trilogy is Peter Meyer's Brownfields, Risk-Based Corrective Action, and Local Communities.  Here's the abstract: Free Download

This article addresses the problems facing communities that suffer both environmental risks from past contamination and depressed economic activity. In such settings, redevelopment of contaminated sites and the associated economic development may require compromised standards for environmental mitigation. This potential conflict is often resolved through risk-based corrective action on sites cleaned only for their prospective use. But partial cleanups can be shown to face inevitable failure at some future date. Thus, in such an approach, communities face risks that they need to understand and should be capable of accepting or rejecting. The article considers these risks and assesses four alternative land use control strategies for assuring community participation in making decisions about both the cleanup process today and the response to risks of failure in the future.

Jim K.

February 24, 2011 in Community Design, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Howland on The Private Market for Brownfield Properties

Like yesterday's featured article from Cityscape, Marie Howland's (U. Md.- Planning)The Private Market for Brownfield Properties also takes advantage of Baltimore's industrial heritage to track brownfield sales. Here's the abstract:

This study examines land sales over a 10-year period - 1990 to 2000 - in one southwest Baltimore industrial district - Carroll Camden - to determine the effect of land contamination on property sales and sales price. I tracked all sales, selling price, time on the market, and the presence of land contamination in the 5,580-acre area. The results indicate that after the mid-1990s, contaminated parcels sold on the private market, with price discounts that accounted for contamination and cleanup. Out of the 144 parcels sold over the 1990-to-2000 decade, positive and market-clearing prices were found for 45 parcels with either confirmed or historical-reasons-to-suspect contamination. Interviews with owners and brokers of parcels on the market for 2 years or more and analysis of the data indicate that the contaminated parcels that did not sell within the 2-year period (1) had above-market asking price; (2) were small and odd-shaped; (3) had inadequate road access for modern trucks; (4) had outdated water, sewer, and telecommunications connections; or (5) had incompatible surrounding land uses. Two policy implications result from these findings. First, if a city such as Baltimore wants to revitalize an industrial area - maintaining its industrial function and remediating contamination - government-subsidized cleanups may not be the most cost-effective policy. Rather, the city should (1) modernize the outdated infrastructure, including roads and fiber optic connections; (2) remove the outdated residential structures that sit in the midst of the industrial area and diminish the desirability of some land parcels for industrial use; (3) consolidate small and odd-shaped properties that are not conducive to modern manufacturing, warehousing, or other industrial uses; (4) ensure city services are efficiently provided, including trash cleanup and police and fire protection; and (5) improve access and egress for modern trucking. The evidence from the Baltimore study indicates that the private sector will discount land prices and assume cleanup responsibilities. The second policy implication is that the market is capable of brownfield cleanup in some locations.

Jim K.


February 24, 2011 in Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 23, 2011

Guignet and Alberini on Voluntary Cleanup and Brownfield Redevelopment

A recent issue of HUD's Cityscape journal contains several articles on land use and remediation of environmental contamination.  The first featured here is Voluntary Cleanup Programs and Redevelopment Potential: Lessons from Baltimore, Maryland by Dennis Guignet and Anna Alberini (both U. Md.--Ag. & Resource Econ.).  Here's the abstract:

In the United States, policy has increasingly shifted toward economic incentives and liability attenuation for promoting cleanup and redevelopment of contaminated sites, but little is known about the effectiveness of such policies. These policies include, among others, state Voluntary Cleanup Programs (VCPs), which were established in the United States in the 1990s and, to date, have been implemented in nearly every state. This article focuses on 116 Baltimore properties that were enrolled and participated in the Maryland VCP from its inception in 1997 to the end of 2006 and examines what type of properties tend to participate in these programs, how these properties compare with other eligible but nonparticipating sites, and what the redevelopment potential of VCP properties and implications is toward open-space conversion.

We find that most applicants (66 percent) actually requested a No Further Requirements Determination directly, rather than proposing cleanup. Nevertheless, the VCP led to the identification and environmental assessment of 1,175 acres of contaminated land in the city of Baltimore alone. In Baltimore, VCP properties tend to be industrial, located in areas zoned as industrial, and away from residential neighborhoods. In more recent years, larger properties have increasingly enrolled in the program. Most participating sites are reused as industrial or commercial properties. In contrast with Alberini (2007), these findings suggest that, in Baltimore, pressure for residential development has not driven VCP participation to date. Based on differences in zoning requirements, the VCP may reduce demand for potentially contaminating activities on pristine land by as much as 1,238 to 6,444 acres, in Baltimore alone.

Jim K. Free Download

February 23, 2011 in Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Monday, February 7, 2011

Fracking Conference

We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!

- Jessica Owley

 Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy

March 28-29, 2011 at University at Buffalo School of Law

Buffalo, New York

On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.

Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.

We welcome submissions on any related topic, including the following:

  • Hydrofracking and Nuisance Law
  • Impacts on Tribal Lands
  • Administrative law and the EPA Rulemakings
  • Environmental Review Processes    
  • Application of federal environmental laws, including the Clean Water Act and Clean Air Act
  • Energy issues, in including the Energy Policy Act and DOE policy
  • Endocrine Disruption and Human Health Impacts

Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to

For more information, contact Jessica Owley [ or 716-645-8182] or Kim Diana Connolly [ or 716-645-2092]

February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack (0)

Tuesday, January 18, 2011

Connecticut vs. American Power

Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power.  Following is a synopsis from the Climate Change and Clean Technology Blog.

On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).

This is a case to watch out for during this Supreme Court term.

Read more here.

Jamie Baker Roskie

January 18, 2011 in Climate, Environmentalism, Federal Government, Industrial Regulation, Land Trust, Local Government, New York, Nuisance, Property Rights, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Price on the New Deal and the Federalization of the Mosquito

Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010).  The abstract:

Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.

The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.

From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.

The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be. 

Matt Festa

January 18, 2011 in Agriculture, Federal Government, History, Nuisance, Politics, Scholarship, State Government, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 15, 2010

Hirokawa & Gonzalez on Regulating Vacant Property

Another one from Keith H. Hirokawa (Albany), with Ira Gonzalez (JD Candidate, Loyola-New Orleans & former Chief of Operations/Code Enforcement, City of Miami): Regulating Vacant Property, from The Urban Lawyer, Vol. 42, No. 3, p. 647 (2010).  The abstract:

Local governments have recently noted a correlation between the characteristics of neglected properties (e.g., unkempt yards, garbage accumulation, unsightly and dangerous structures) and the onslaught of neighborhood blight. Local governments have also noted the coincidence of unoccupied structures and property deterioration through lack of maintenance. Accordingly, local governments (in droves) have employed the police power to regulate property vacancy. In other words, to clamp down on blight, lawmakers are turning to regulation of non-use of real estate through vacant property regulatory programs.

Vacant property regulations may provide an efficient way for local governments to contain neighborhood deterioration. In a troubled real estate market, such efforts may also support the property owners' interests in the maintaining property values until market conditions improve. However, vacant property regulations pose special, perhaps unanticipated, problems for owners and neighborhoods. This article considers whether the current iterations of vacant property regulation may do more harm than good.

Matt Festa

December 15, 2010 in Housing, Local Government, Nuisance, Property, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 7, 2010

Supreme Court to Hear Case on Nuisance & Global Warming

The U.S. Supreme Court granted cert on Monday to hear American Electric Power Company, Inc. v. Connecticut.  The case, on petition from the Second Circuit, was brought by several states against the entities they contend are the leading causers of global warming in the U.S.  It hasn't gone to trial yet.  What's significant about the case--both as a matter of legal theory and policy--is that the theory of the case is based on nuisance.  Via SCOTUSblog, a statement of the issues:

Issue: (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)

Plain English Issue: Whether federal law allows states and private parties to sue utilities for contributing to global warming. (Sotomayor, J., recused.)

Again, what's implied in this issue statement is that the case is based on (federal) nuisance (common) law.  You can read an analysis from Lyle Denniston on SCOTUSblog (scroll down a bit), and view the links to the briefs, orders, and amici at SCOTUSblog here.  There are lots of conlaw and administrative law bigwigs and interest groups on both sides of what will likely be an important case.

Matt Festa 

December 7, 2010 in Caselaw, Climate, Environmental Law, Environmentalism, Judicial Review, Nuisance, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Saturday, July 10, 2010

Salkin & Kansler on Medical Marijuana Meets Land Use

Patricia E. Salkin (Albany) wrote to let us know that she and Zachary Kansler (Albany) have posted Medical Marijuana Meets Land Use: Can You Grow, Smoke, and Sell that Here?  The abstract:

Fourteen states currently permit the medical use of marijuana, yet state statutes fail to account for the challenges that confront municipal planners and officials whose agenda includes public health, safety and welfare of residents, including minor children. The intensity of the problem is perhaps most evident in Los Angeles, where there are approximately 800 dispensaries. Varying statutory approaches are provided for individuals to legitimately acquire the drug - they may grow it themselves, they may obtain it from their primary caregiver, or they may obtain it from a licensed dispensary. This raises a number of land use regulatory questions including: whether state law preempts local zoning when it comes to growing, buying and using marijuana for medicinal purposes; whether distance requirements, similar to those used in the regulation of adult business uses, can be utilized to regulate the use of medical marijuana; and, what types of special use permit considerations may be appropriate for considering activities related to the use of medical marijuana. In addition, questions as to whether growing and sale of the drug may constitute a valid home occupation, and whether marijuana is or should be considered an agricultural crop, and if so, what impact this would have on the relationship between agricultural regulation/policy and zoning, suggest a growing number of legal unanswered land use law related questions in this emerging area. This article pulls together information about how the municipalities in the fourteen states with legalized medical marijuana are beginning to sort through and address the challenging land use issues that confront communities faced with the growing, sale and use of the drug.

Interesting and timely, and more support for my theory that every important issue ultimately has a land use angle.

Matt Festa

July 10, 2010 in Agriculture, Local Government, Nuisance, Politics, Scholarship, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, June 24, 2010

Kermit Lind on Cleveland Housing Code Enforcement

From Kermit Lind of Cleveland State:

Major news on the municipal code enforcement front was made yesterday with the publication of Friday’s decisions by Judge Raymond L. Pianka, of the Housing Division of Cleveland Municipal Court. A total of $12 million in fines was levied on two related South Carolina commercial homeowners cited in 2008 for major violations of Cleveland’s building and housing codes.

The Court issued the following statement on its web site:

“In these two cases, the Court imposed fines on the Defendants for extended and extensive violations of the City’s codes. The Court analyzed in depth the aggravating and mitigating factors and found no basis, at this time, for mitigation of the fines. Defendants are related, out-of-state, for-profit corporations in the business of buying and selling real estate. The Court discussed at length the impact that neglected properties have on the city and the harm caused by investors who neglect properties and shift the costs of nuisance abatement to the City’s taxpayers. Among
the factors the Court found aggravating were Defendants’ ongoing failures to correct violations and their “offer” to the City of a sum insufficient to cover even the outstanding demolition costs and unpaid taxes on the properties. The Court imposed total fines of $11,948,000 on Interstate Investment Group and $1,059,000 on Paramount Land Holdings, LLC.”

The Court’s decision sends a message to those presuming that compliance with local building and housing ordinances that protect the public health, safety and welfare is not required of those who own housing for business purposes. In Cleveland, banks and bulk purchasers of bank real estate owned (REO) properties have claimed in legal proceedings that municipal laws do not apply to them when it conflicts with their business interests in holding title to real property.

The Court also scolded City Prosecutors for weak prosecution in the sentencing phase of these cases. It calculated the small costs to chronically lawless investor-owners of violating in rejecting the prosecution’s proposed sentences. Judge Pianka’s judgment also stated the Court’s now familiar policy of sentencing for compliance over punishment. That policy mitigates fines where the guilty homeowners abate or pay the costs of abating nuisance conditions.

With the new Cuyahoga County Land Reutilization Corporation now in operation as an advanced capacity land bank, some banks and other absentee commercial owners of residential properties, including Fannie Mae, are looking to it for help in disposing of unmarketable houses.

The Court’s web site is

Jamie Baker Roskie

June 24, 2010 in Caselaw, Housing, Local Government, Nuisance | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

Thomas on the Public Forum Doctrine

David A. Thomas (Brigham Young University) has posted Whither the Public Forum Doctrine: Has this Creature of Courts Outlived its Usefulness?, from Real Property, Probate and Trust Law Journal, Vol. 44, pp. 637-743 (Winter 2010).  The abstract:

Tracing both the development of the Public Forum Doctrine and the history of the property rights it affects, in this Article the Author argues that the doctrine currently exists as a tangled mass of precedent that is unworkable in practice. By juxtaposing the current application of the Public Forum Doctrine against a proposed approach that balances the property rights of the owner against the speech rights of the visitor to the land, the Author provides support for the position that the Public Forum Doctrine can be replaced by a more effective means of achieving a fair balance between the competing rights.

Includes an Appendix: Historical Details on the Emerging Concept: Governmental Immunity Over English Land in the Anglo-Saxon and Norman Periods (pp. 735-743).

Matt Festa

May 19, 2010 in Caselaw, Constitutional Law, First Amendment, Nuisance, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

I Am the Crazy Neighbor

As I mentioned in my previous post, one of the latest dramas in my life is a ginormous pile of dirt that a developer recently dumped on three residential lots around the corner from my house.  The dirt originally came from a massive, at least by Athens standards, excavation of about 75,000 cubic yards of dirt for the basement of the new Special Collections library here at UGA.  Fill dirt was once quite a commodity when the housing market was hot, but now, according to a friend of mine who's a commercial contractor, you can't give the stuff away.  Or, apparently, you can, to a developer who will then store it in some lots where he maybe has plans, sometime in the future, to build on the lots.

The problem is that he hasn't drawn up any plans, nor does he have any engineering drawings to show how to accommodate between 1,000 and 2,000 cubic yards (about 100-200 tandem dump truck loads) of dirt on the property.  We got wise to the problem one morning earlier this month when we heard the sounds of diesel engines idling, and dump truck after dump truck banging as it emptied its load.

Now we get to the part where I'm the crazy neighbor lady.  I went away for Spring Break, hoping that my neighbors would be able to stop this madness by calling in the county enforcement folks.  However, apparently dumping continued unabated for at least 3 days. When I returned to town the pile had grown to its current size.  I then read a column in our local weekly about the great Special Collections library project.   While I agree about the coolness of the SC library, I felt like the folks at the magazine should know about its shadow side. So, I e-mailed the columnist and, while I was at it, the on campus newspaper and the local daily. The campus newspaper, the Red and Black, ran the story (see first link above).  It turns out that the Atlanta TV stations read the R&B, and next thing I knew I was getting calls from television reporters.  They were really interested in our giant dirt pile!  I was surprised, but I agreed to give them interviews. While they were out, they got the developer on tape too and ran the story.  (Visit this link on the law school's website to see most of the media coverage - thanks to the law school's public relations staff for pulling that together.)

The next day I was a local celebrity, and not in a totally good way.  My favorite reaction was from a university staffer in my husband's building who, not realizing my husband was related to me, told him, "That land use lady needs to find something to do!"  (When a co-worker of my husband brought our relationship to the staffer's attention, he was apologetic and chagrined.  I just think it's funny!)

I've worked all sides of the development game in my career, including representing developers and neighbors.  I figure it was inevitable I would turn out to be the cranky neighbor myself.  I've started calling myself the queen of the dirt pile.

The local weekly, the Flagpole, has the most interesting take on the story.  Their City Editor, Dave Marr, ran a good column that explains our confusion about how the developer seems to have threaded multiple loopholes in the code.

I've got some great folks in the neighborhood working with me, including a couple of experts on soil and erosion and a civil engineer.  A local commissioner pulled together a good meeting with county staff yesterday and we're working toward a solution.  In the meantime, I'm trying to catch up on my work and get ready for UGA's annual Red Clay conference on environmental issues.  I'm moderating a panel on Georgia's water rights problems called "Is Atlanta Really the 800 Pound Gorilla?"

Jamie Baker Roskie

UPDATE: The latest from the UGA student newspaper on the controversy.

UPDATE TWO: The dirt pile now has its own website.

March 25, 2010 in Development, Environmental Law, Georgia, Local Government, Nuisance, Planning | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 16, 2010

Smith & Fernandez on Aesthetic Nuisance

George P. Smith II (Catholic) and Griffin W. Fernandez have posted The Price of Beauty: An Economic Approach to Aesthetic NuisanceHarvard Environmental Law Review, Vol. 15, No. 1, p. 1991.  The abstract:

This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of aural and olfactory nuisance disputes. Indeed, the judiciary should resolve conflicts emanating from the unaesthetic uses of land through the Restatement of Torts “objective” balancing test in order to determine what, according to prevailing community standards, is reasonable under the circumstances.

The expanded popularity of aesthetic zoning in many municipalities demonstrates anew the social value of aesthetics and thereby illustrates with clarity a very conscious relationship which exists between economic development and American nuisance law. Judicial recognition of police powers to enforce zoning regulations of this order contradicts - clearly - the heretofore seen reluctance of the Common Law to confront aesthetics in the realm of nuisance and thus invites a more contemporary and enlightened judicial response to this legal issue.

Matt Festa

March 16, 2010 in Aesthetic Regulation, Local Government, Nuisance, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Nuisance Law and the Mortgage Crisis

I'm just now getting around to posting a link sent to me by Kermit Lind from Cleveland State's Urban Development Law Clinic.  The page contains materials from their (fairly) recent Public Nuisance CLE.  Professor Lind hopes this information will be helpful to others engaged in nuisance abatement and code enforcement in the context of the mortgage crisis.  CSU's clinic has done a lot of interesting an innovative work in the context of a contracting urban center.  I hope we'll be able to persuade Prof. Lind and his colleague Professor Carol Heyward to share more about their work.

Jamie Baker Roskie

February 4, 2010 in Conferences, Financial Crisis, Housing, Nuisance | Permalink | Comments (2) | TrackBack (0)

May the bells toll . . . in Phoenix?

There seems to be a big church-state land use battle brewing in Arizona.  From the Arizona Republic story Court hears arguments over church bell in Phoenix:

The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday. 
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to  the annoyance of its neighbors. 
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down. 
The bells could ring, she said, but only once a week on Sunday morning.
She also found the church's leader, Bishop Rick Painter, guilty on two counts of  disturbing the peace. He received a 10-day suspended sentence and three years' probation. 
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional. 

The legal conflict centers around a city noise ordinance.  The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory.  In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:

"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited." 

Is the ordinance unconstitutionally vague?  Does targeting church bells infringe on First Amendment free exercise, or RLUIPA?  It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard.  Too much discretion, or necessary flexibility?  That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.

Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core.  The battle is joined and it looks to be an interesting federal case.

UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.

Matt Festa

February 4, 2010 in First Amendment, Local Government, Nuisance, RLUIPA, Sun Belt | Permalink | Comments (2) | TrackBack (0)

Friday, January 29, 2010


Newsweek on-line has the article "An Unquiet Nation" The subtitle is "Audio ecologist Gordon Hempton talks about America's vanishing quiet spaces, and how our lives can be helped by listening to the silence."  Hempton has traveled the world looking for silent places, and he's finding fewer and fewer.  In 2007 there were only 3 places left with 15 minute intervals of silence, one of which is in Olympic National Park in Washington state.  The primary problem is air travel, which is not a land use problem per se.

However, many communities struggle with the issue of noise and the similar problem of light pollution.  (See a UGA Land Use Clinic guidebook on local regulation of light pollution here.)  My clients in the Newtown neighborhood of Gainesville, Georgia would probably find Hempton's search for absolute silence a bit precious.  They're just hoping for some relief from the constant background hum from the nearby grain mill and the intermittent crash of metal on the junkyard site that sometimes exceeds OSHA standards - meaning folks should be wearing earplugs in their yards to avoid hearing loss.  (See our environmental consultants' report here and give it a few moments to download.)

Still, noise pollution of all kinds is wearing on the nerves and potentially damaging to health (also as documented in the report linked above).  I'm not sure I've ever been in a place totally free of mechanical sound and, although I hadn't thought about it before I read this article, that thought does make me a bit sad.

Jamie Baker Roskie

January 29, 2010 in Environmental Justice, Environmentalism, Industrial Regulation, Nuisance | Permalink | Comments (0) | TrackBack (0)

Thursday, December 31, 2009

Hills & Schleicher on the Steep Costs of Noncumulative Zoning

Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, forthcoming in the University of Chicago Law Review, Vol. 77, No. 1, 2010.  The abstract:

In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price.

In this essay, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a “right to stink” in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city’s own welfare unless the external “agglomeration” benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation. 

Looks very interesting.  I agree that non-cumulative industrial zoning is counterproductive, not only from the efficiency standpoint but also because it is the mirror image of residential-only zoning, which creates sprawl and prevents mixed use.  

Matt Festa

December 31, 2009 in Density, Industrial Regulation, Nuisance, Planning, Redevelopment, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, December 7, 2009

"Life in the shadow of industry"

Today our clients the Newtown Florist Club, and the Clinic, got some great coverage in the Gainesville (GA) Times.  This article, hopefully the first in a series, covers the impact of industry on the Newtown neighborhood, something I've discussed in a previous blog post and that one of my students also discussed in his guest post.  I'm very pleased with this coverage - this reporter, Ashley Fielding, has really gotten at the history and nuance of this complicated situation, which implicates zoning, public health, nuisance, race, class, community and economic development, and much more.  Who says newspaper reporting is a dead art?

Jamie Baker Roskie

December 7, 2009 in Community Design, Community Economic Development, Environmental Justice, Environmental Law, Georgia, Industrial Regulation, Local Government, Nuisance, Planning, Politics, Property, Race, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack (0)