Forming a Tie That Binds: Development Agreements in Georgia and the Need for Legislative Clarity
Michael B. Kent, Jr., Assistant Professor, John Marshall Law School

This paper analyzes the utilization and validity of development agreements as land use tools in Georgia, one of the nation’s fastest growing states. Given Georgia’s recent and rapid growth, it provides a case study for the utilization and validity of development agreements in high-growth areas where traditional land use regulations remain the norm.

Unfortunately, however, development agreements likely are not enforceable under Georgia’s current legal framework. Georgia law, like that of many jurisdictions, is clear that local governments may contract only in accordance with express constitutional or legislative authorization. Because Georgia has no enabling statute expressly permitting local governments to enter into development agreements, such agreements run afoul of this requirement. Additionally, even assuming that development agreements were authorized, they likely violate Georgia’s “binding contracts” prohibition, a version of the reserved powers doctrine that prohibits long-term contractual commitments that bind subsequent governing authorities in governmental matters. To overcome these obstacles, this paper argues that Georgia should enact legislation expressly enabling local governments to enter into long-term development agreements. After discussing the potential benefits of such agreements, the paper then analyzes the validity and enforceability of the agreements under the two doctrines mentioned above, concluding (as indicated) that the agreements would not be enforceable under Georgia’s current legal framework.

An Environmentalist’s Unlikely Foe: The Use of Hypothetical Jurisdiction in Massachusetts v. EPA
Caroline Patton, J.D. Candidate, 2007, U.C. Davis School of Law

This Note examines the D.C. Circuit Court’s use of hypothetical jurisdiction to evade the issue of standing in Massachusetts v. EPA. Massachusetts presented the issue of whether plaintiffs asserting injuries caused by global warming had standing to sue the EPA for failing to regulate greenhouse gas emissions. The panel of three judges hearing the case splintered on the issue of standing. The majority opinion held that the standing inquiry and the EPA’s reasons for not regulating substantially overlapped. According to the majority, this made it prudent to decide the case on the merits without addressing the issue of standing. This Note argues the Massachusetts Court’s use of hypothetical jurisdiction violated Supreme Court precedent and prejudiced the plaintiffs. Ultimately, this Note argues that the Massachusetts Court should have found that the plaintiffs had established standing by adopting a more liberal standard of proof.

Changing Direction in Administrative Agency Rulemaking: “Reasoned Analysis,” the Roadless Rule Repeal, and the 2006 National Park Service Management Policies
David H. Becker, Staff Attorney, Western Resource Advocates, Salt Lake City, Utah

In the often-cited State Farm case, the Supreme Court set out two bedrock principles of judicial review of administrative actions. One is the familiar multi-factor test for determining whether agency action is “arbitrary and capricious,” a test applicable to any administrative decision. The other, applied more narrowly when an agency changes course by revising or rescinding a regulation, requires that the agency provide a reasoned analysis for that change. This article explores the latter principle by considering judicial interpretations of the “reasoned analysis” standard since State Farm and by evaluating how this obligation applies to two recent land management agency changes of regulatory course.

A survey of the case law shows that the Supreme Court itself has offered no clear guidance on how persuasive an agency’s reasoned analysis must be to satisfy State Farm. The Chevron decision, affording deference to a permissible agency statutory interpretation, complicates the analytical framework for assessing agency changes of course. Lower courts reviewing such agency decisions have sometimes failed to distinguish among the various standards, often conflating the two principles from State Farm when reviewing an agency regulatory change. Courts that have focused carefully on the reasoned analysis requirement have generally found agency explanations to be satisfactory, setting aside agency decisions only where the agency provided no explanation or where the explanation was unsupported by any evidence or defied logic. The U.S. Forest Service’s rescission of its Roadless Area Conservation Rule in May 2005, and the National Park Service’s adoption of revised Management Policies for the park system in August 2006, both involved agency decisions to adopt new policy courses by updating existing regulations. The article concludes that, despite the relatively light burden that the State Farm reasoned analysis standard places on agencies to explain their changes of course, these agencies’ explanations do not satisfy the standard.

Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation
Jacob Loshin, J.D. Candidate, 2007, Yale Law School

This article is the first piece of legal scholarship to address the land use issues associated with signs and billboards in a comprehensive and systematic manner. Although other scholars have addressed signs and billboards as a category of First Amendment law, the land use side of the sign issue has been neglected. Signs and billboards are a pervasive form of land use, and they pose distinctive practical and theoretical problems for land use law and policy. Yet, the land use literature has rarely treated signs as such. This article seeks to fill the void.

The article has three principal aims. First, it provides a comprehensive history of sign and billboard disputes, using one city’s century-long experience as a case study. The article relies on original research from primary sources to explain how and why patterns of sign land use and sign regulation have evolved over time. It pays special attention to the economics of signs and the public choice aspects of sign regulation. Secondly, the article uses lessons gleaned from this history to construct a framework for thinking about sign regulation. It examines how signs relate to concerns about nuisance, aesthetics, information, and expression. It also corrects certain conceptual mistakes made by judges and policymakers. Finally, the article evaluates the regulatory tools available for controlling sign land use. It critiques some common approaches to regulating signs, and it argues that sign regulation should embrace alternative regulatory tools, such as nuisance law and taxation, which have so far been underutilized and underappreciated.

Capturing the Value of Appreciated Development Rights On Conservation Easement Termination
James L. Olmsted, Licensed to practice law in CA, NV, OR and WA; Founder and owner of Conservation and Preservation Counsel, Eugene, Oregon

This article explores conservation easement drafting strategies responsive to global warming and climate change. As a starting point, the article proposes the development of a new form of conservation easement, described in the article as an "Ark" easement. Unlike traditional, perpetual easements (referred to as "Park" easements in the article), the Ark conservation easement is not intended to exist in perpetuity and, instead, is terminable by the holder without resort to a judicial proceeding. The merit of the Ark easement is that if global warming caused changes such as species extirpation render the conservation purposes of the easement impossible or impractical, the easement holder can terminate the easement and use the proceeds for other conservation purposes similar to those of the now terminated easement. For this strategy to succeed, however, the easement holder must be able to recover the full, appreciated value of the development rights formerly held in abeyance by the now terminated easement. The same valuation principle holds for judicially terminated "Park" easements as well.

Accordingly, the article recommends a "hybrid" valuation on termination provision which captures the full, appreciated value of the newly released development rights. This hybrid valuation method assigns to the easement holder the greater of the ratio-based value of the conservation easement from the Treasury Regulations (i.e., the ratio of the value of the conservation easement to the eased land at the time of easement creation is applied to the proceeds from the sale or exchange of the land subsequent to easement termination) or the fair market value of the conservation easement as of the date of termination. As there are currently approximately 1,500 land trusts in the United States which collectively hold approximately 18,000 conservation easements covering over 5 million acres, the amount of money at stake in easement terminations is enormous. This article seeks to provide means by which careful land trusts can avoid landowner windfalls from the appreciated value of these easements and instead capture the appreciated value to be re-deployed to further the social good of land and resource conservation.