Law & urban planning students in my Spring 2011 Land Use & Planning Law course prepared an Urban Tree Canopy Plan as a service learning project for the Partnership for a Green City, the Louisville Metro Parks Department, and Community of Trees, an association of government agencies, organizations, and individuals.  This plan and its recommendations will be a base from which Community of Trees develops an "Action Plan for Louisville's Urban Forest."  A meeting to consider my students' recommendations and to select recommendations for near-future action will be held Wednesday, June 22, 2011, at 10:00 a.m. at 415 W. Muhammad Ali Boulevard, Louisville, KY.  The students' Urban Tree Canopy plan can be downloaded at:

http://www.jefferson.k12.ky.us/Departments/EnvironmentalEd/GreenCity/UrbanTreeCanopyPlan.pdf 

This was one of 3 service learning projects prepared in the Spring 2011 offering of the innovative and interdisciplinary Land Use & Planning Law course at the University of Louisville.

I posted the following on the Boehl Distinguished Lecture Series in Land Use Policy at the University of Louisville Brandeis School of Law on the Land Use Professors blog, as an example of the value of having a land-use lecture series.

http://lawprofessors.typepad.com/land_use/2011/02/land-use-lecture-series-the-boehl-lecture-example.html

My first posting on the Land Use Professors' blog is on Judith Welch Wegner's Boehl Distinguished Lecture in Land Use Policy at the University of Louisville Brandeis School of Law this past Thursday, January 27.  Professor Wegner spoke on annexation and land use dilemmas.  My post about her lecture is here:

http://lawprofessors.typepad.com/land_use/2011/01/judith-wegner-annexation-and-the-boehl-lectures-1.html

I have been asked to join the Land Use Professors' Blog as a contributing editor.  I read this excellent blog every day, and I am really honored to be asked to participate.  I will post periodically on various land use issues, and while the blog is aimed primarily at land use scholars, it is of interest to anyone who cares about land use issues.  The Law School's IT staff are working on a way that my Land Use Prof blog postings can feed directly into this blog.  But until we work that out, I will post links to my postings.  The introduction is here:

http://lawprofessors.typepad.com/land_use/2011/01/introducing-tony-arnold.html

The value of the services provided to human societies by natural ecosystems and biogeochemical cycles has recently been the topic of discussion and research. Here I review some of the basic economic principles necessary for understanding some of the questions that arise in this area. I argue that even with the best possible data and scientific understanding, the sense in which economists can value nature's services is limited. I also argue that valuing these services is much less important than providing incentives for their conservation, and that valuation and providing incentives for conservation are quite different. Valuation is neither necessary nor sufficient for conservation, whereas providing the right incentives is.

Today I am starting a 4-part series on ecosystem services.  Ecosystem services are the services that nature provides to humans, society, and the economy.  Research by scientists, economists, and public policy specialists has demonstrated that ecosystems provide critical and extremely valuable services that not only support life generally but also contribute to the functioning of our society and economy.  However, market, public policies, and legal doctrines tend to under-value these ecosystem services.

The concept of ecosystem services raises a variety of interesting questions:  Should we be attaching monetary values to nature and treating nature’s functions and processes as market commodities?  Does the concept of ecosystem services allow for eco-centric (i.e., non-human) values and non-economic benefits to humans?   Is it even possible to assign economic values to ecosystem services in any meaningful or useful way?  How can legal, political, economic, and social institutions incorporate ecosystem services values into their decision making processes?

Carol Brown, a law professor at the University of North Carolina Law School, is a young scholar of emerging importance in property law and the environment.  One of the themes of this blog is the reconceptualization of property rights and interests to address ecological sustainability and the environment’s carrying capacity.  Professor Brown has written several valuable articles in this area.  I have provided links and abstracts for two of these articles, below:

1) Carol Necole Brown, A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements. U of Alabama Public Law Research Paper No. 08-07, Available at SSRN: http://ssrn.com/abstract=881868 

Abstract:     

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs.  My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes.

It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.

My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.

2) Carol Necole Brown,Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law. U of Alabama Public Law Research Paper No. 894088, Available at SSRN: http://ssrn.com/abstract=894088

Abstract:     

American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally.

In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's "traditionally broad understanding of public purpose" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.

Patty Salkin, a well known national expert in land use law, continues to come out with new publications on smart growth and land use.  Local communities everywhere are seeking new ideas about how to address climate change, natural disasters, barriers to healthy lifestyles, and the environments of low-income and minority communities (environmental justice).

The following are 4 valuable publications that address various aspects of the intersection between smart growth and land use planning and regulation. Incidentally, Salkin presented the paper on land use law and active living at the Children, Nature, and Land Use program at the University of Louisville’s first Symposium on Law, Ethics, and the Life Sciences in Fall 2007.  The program on children and the environment was sponsored by the University of Louisville’s Center for Land Use and Environmental Responsibility.

1) Patricia Salkin, Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations (July 17, 2008).  Available at SSRN: http://ssrn.com/abstract=1162499 

Abstract: 

    
Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products.

However, it is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.

2) Patricia Salkin, Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation (July, 08 2008). Environmental Law Report, Vol. 38, p. 10158, March 2008.  Available at SSRN: http://ssrn.com/abstract=1157153 

Abstract:

  
The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal, state, and local entities to coordinate disaster mitigation strategies.


3) Patricia Salkin and Amy Lavine, Land Use Law and Active Living: Opportunities for States to Assume a Leadership Role in Promoting and Incentivizing Local Options (October 26, 2007). Rutgers Journal of Law and Urban, Policy Vol. 5, 2008.  Available at SSRN: http://ssrn.com/abstract=1025722 

Abstract: 

    
Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights exisiting examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

4) Patricia Salkin, Intersection Between Environmental Justice and Land Use Planning. Planning and Environmental Law, May 2006.  Available at SSRN: http://ssrn.com/abstract=1029861

Abstract:

Environmental justice goes to the core of traditional land use decisions: choosing sites for locally unwanted land uses (geographic equity); the process for deciding where to site these unwanted land uses, including the location and timing of public hearings (procedural equity); and sociological factors, including which groups hold the political power inherent in land use decisions (social equity). This articles discusses the various tools in land use planning and zoning that can used to promote and implement environmental justice principles.