Land Use Prof Blog

US EPA releases new edition of Our Built and Natural Environments profiling smart growth research

The U.S. Environmental Protection Agency just released a great report, Our Built and Natural Environments: A Technical Review of the Interactions Between Land Use, Transportation, and Environmental Quality (2nd Edition), which updates a previous edition released in 2001 and brings together a tremendous amount of research from the past decade.  The report has many interesting tidbits, and references, for those land use scholars interested in urban environmental issues.  Below are several key findings from the report, as listed in the release:

[The report] discusses the status of and trends in land use, development, and transportation and their environmental implications. Findings include:

The U.S. population is projected to grow 42 percent between 2010 and 2050, from 310 million to 439 million (Vincent and Velkoff 2010).
While the population roughly doubled between 1950 and 2011 (U.S. Census Bureau), vehicle travel during this same period increased nearly sixfold (Federal Highway Administration 2010 and 2012). However, evidence suggests that the growth of vehicle travel might be slowing in recent years.
Virtually every metropolitan region in the United States has expanded substantially in land area since 1950—including regions that lost population during that time (U.S. Census Bureau).

[The report] articulates the current understanding of the relationship between the built environment and the quality of air, water, land resources, habitat, and human health. Findings include:

Biodiversity: For nearly all plants and animals, species diversity declines with increases in the amount of impervious surface, road density, time since development, human population density, and building density (Pickett et al. 2011).
Water: Development in watersheds reduces the quantity, quality, and diversity of stream habitat for aquatic life (Booth and Bledsoe 2009). As water is polluted and degraded, it can become unfit for drinking, swimming, fishing, and other uses.
Air: More than 38 percent of national carbon monoxide emissions and 38 percent of nitrogen oxide emissions come from highway vehicles. Stationary sources like power plants that provide energy to homes, offices, and industries are also major sources of pollution (EPA 2012).
Climate Change: Greenhouse gas emissions from the transportation sector increased 19 percent between 1990 and 2010, due primarily to the increase in vehicle travel but partially offset by a slight increase in average fuel economy as older vehicles were removed from the roads (EPA 2012).
Health: While data are lacking to determine whether the built environment determines levels of physical activity and/or obesity, nearly 90 percent of studies found a positive association (Ferdinand et al. 2012), suggesting that the built environment is one of the many factors that could play a role in how much people exercise and levels of obesity.
Safety: Car crashes are the third leading cause of death in terms of years of life lost given the young age of so many car crash victims and the number of years they would have been expected to live if they had not died in a car crash. Only cancer and heart disease are responsible for more years of life lost (Subramanian 2011).

Provides evidence that certain kinds of land use and transportation strategies can reduce the environmental and human health impacts of development. Findings include:

Development in and adjacent to already-developed areas can help protect natural resources like wetlands, streams, coastlines, and critical habitat.
Residents of transit-oriented developments are two to five times more likely to use transit for commuting and non-work trips than others living in the same region (Arrington and Cervero 2008).
In general, the greater the population density of an area, the less the area's residents tend to drive (Transportation Research Board of the National Academies 2003). Doubling residential density across a metropolitan region could reduce household vehicle travel by between 5 and 12 percent (National Research Council of the National Academies, Driving and the Built Environment 2009).
Communities with streets designed for the safety of all users can encourage walking and biking and help people lead healthier lifestyles (Giles et al. 2011).
A review of green building retrofits of commercial buildings around the world found energy savings of 50 to 70 percent (Harvey 2009).
Water-efficient household appliances and fixtures can yield significant water savings, and careful selection of construction materials can conserve natural resources and improve indoor air quality. Site-scale green infrastructure can also reduce development's impacts on water quality.

A good resource, and well worth a look! US EPA is also holding a webinar on the report on Wednesday, July 24 at 2:00 p.m.

Stephen R. Miller 

 

Lee on Eminent Domain's Just Undercompensation

Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).  Lee presents an interesting challenge to recent scholarship recognizing "confiscation of the uncompensated increment" to use Lee Fennell's terminology.  The article does not reject above-market compensation altogether but instead criticizes premium approaches for redistributing wealth to the already well-off.  Here's the abstract:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Jim K.

Godsil on a Fair Housing Response to Gentrification

Rachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319 (2013).  It's wonderful to have Rachel's civil rights scholarship back in the (urban) neighborhood again.  Here's the abstract:

Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.

This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.

Jim K.

Stahl on Neighborhood Empowerment

Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013).  (Who says Zoning can't go Ivy?!?)  Matt notified us when the piece first was uploaded.  Here's the abstract for the finished piece:

In any given metropolitan region, scores of municipalities are locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to benefit small, homogeneous suburbs that can directly enact the uniform will of the electorate over large, diverse cities that are often ensnarled in conflict between competing interest groups. Cities can level the playing field with suburbs, however, by devolving municipal power to smaller, more homogeneous subgroups, such as neighborhoods. Indeed, many commentators have identified one such effort at neighborhood empowerment, the “business improvement district” (BID), as a key factor in the recent revitalization of many cities. The BID and the related “special assessment district” devolve the financing of infrastructure and services to landowners within a territorially designated area. Courts have widely upheld BIDs and special assessment districts against constitutional challenges.

Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).

This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition. 

Congratulations, Ken!

Jim K.

Back to the old neighborhood

Land use law scholars and other academics continue to rediscover the neighborhood as a terrific lens through which to view a number of issues.  I thought I’d profile three recent works (hubris alert:  one of them is admittedly mine) in this post.

The first is Robert J. Sampson’s (Harvard) book Great American City:  Chicago and the Enduring Neighborhood Effect.  From the press release:

For over fifty years numerous public intellectuals and social theorists have insisted that community is dead. Some would have us believe that we act solely as individuals choosing our own fates regardless of our surroundings, while other theories place us at the mercy of global forces beyond our control. These two perspectives dominate contemporary views of society, but by rejecting the importance of place they are both deeply flawed. Based on one of the most ambitious studies in the history of social science, Great American City argues that communities still matter because life is decisively shaped by where you live.

To demonstrate the powerfully enduring impact of place, Robert J. Sampson presents here the fruits of over a decade’s research in Chicago combined with his own unique personal observations about life in the city, from Cabrini Green to Trump Tower and Millennium Park to the Robert Taylor Homes. He discovers that neighborhoods influence a remarkably wide variety of social phenomena, including crime, health, civic engagement, home foreclosures, teen births, altruism, leadership networks, and immigration. Even national crises cannot halt the impact of place, Sampson finds, as he analyzes the consequences of the Great Recession and its aftermath, bringing his magisterial study up to the fall of 2010.

Following in the influential tradition of the Chicago School of urban studies but updated for the twenty-first century, Great American City is at once a landmark research project, a commanding argument for a new theory of social life, and the story of an iconic city.

The second is another book just published by Carol M. Rose (Arizona) and Richard R. W. Brooks (Yale) entitled Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms.  From the press release:

Saving the Neighborhood tells the charged, still controversial story of the rise and fall of racially restrictive covenants in America, and offers rare insight into the ways legal and social norms reinforce one another, acting with pernicious efficacy to codify and perpetuate intolerance.

The early 1900s saw an unprecedented migration of African Americans leaving the rural South in search of better work and equal citizenship. In reaction, many white communities instituted property agreements—covenants—designed to limit ownership and residency according to race. Restrictive covenants quickly became a powerful legal guarantor of segregation, their authority facing serious challenge only in 1948, when the Supreme Court declared them legally unenforceable in Shelley v. Kraemer. Although the ruling was a shock to courts that had upheld covenants for decades, it failed to end their influence. In this incisive study, Richard Brooks and Carol Rose unpack why.

At root, covenants were social signals. Their greatest use lay in reassuring the white residents that they shared the same goal, while sending a warning to would-be minority entrants: keep out. The authors uncover how loosely knit urban and suburban communities, fearing ethnic mixing or even “tipping,” were fair game to a new class of entrepreneurs who catered to their fears while exacerbating the message encoded in covenants: that black residents threatened white property values. Legal racial covenants expressed and bestowed an aura of legitimacy upon the wish of many white neighborhoods to exclude minorities. Sadly for American race relations, their legacy still lingers.

The third is a law review article, Legal Neighborhoods, just published by yours truly, Stephen R. Miller (Idaho), in the Harvard Environmental Law Review.  Here is the abstract: 

Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a "sense of place" are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto "legal neighborhood." This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment's social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.

It seems to me that the neighborhood is reemerging as an increasingly popular topic in both law and the social sciences, just as it did at the turn of the last century.  Perhaps there is a conference in the midst of this renewed interest, just waiting to come to the fore. 

Stephen R. Miller

Zeiner on a Theraputic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold

Carol Zeiner (St. Thomas) has posted A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold, forthcoming in the Utah Law Review (2013).  The abstract:

Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.

I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation.

That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people.

Any such conclusion demands reexamination on theoretical grounds, which is done in this Article. In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion.

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

Professors' Corner, June 12

It's time once again for the "Professors' Corner" teleconference sponsored by the ABA's Real Property, Trusts, & Estates section.  This month's call features different recent cases to be discussed by John Orth (North Carolina), Tanya Marsh (Wake Forest), and yours truly (South Texas).  See the writeup below for details on the call-in and the cases.  Also, if you're a property or land use prof who might be interested in participating in future calls (I recommend it), get in touch with Tanya.

Matt Festa

Professors’ Corner:  Wednesday, June 12, 2013

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, June 12, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners.  Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.

John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series.  Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death.  Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety.  Here’s a link to Reicherter:  http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf

And to Callaghan:  http://www.flprobatelitigation.com/uploads/file/4D11-631_op[1].pdf

Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section.  She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions.  Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf

Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog.  Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green  Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline.  Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf

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

Ruhl on Ecosystem Services and Federal Public Lands

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

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

Matt Festa

Rockefeller Foundation offers up $100 million to build greater resilience in 100 cities

The Rockefeller Foundation announced last week a $100 million effort to build resilience in 100 cities around the world.  The project sounds really interesting and is accepting applications from cities wanting to participate now.  Learn more here and here.  From the press release:

Rooted in a century of investing in innovation, and as a leader in the growing field of resilience, today The Rockefeller Foundation announced a $100 million commitment to build urban resilience in cities around the world. The Foundation's 100 Resilient Cities Centennial Challenge will select one hundred cities across the globe, and through technical support and resources for developing and implementing plans for urban resilience, the Foundation will help cities leverage billions of additional dollars in infrastructure financing.
 
As natural and man-made shocks and stresses grow in frequency, impact and scale, with the ability to ripple across systems and geographies, cities are largely unprepared to respond to, withstand, and bounce back from disasters. The greatest burden of these events, such as the impacts of climate change or public health threats, often falls on vulnerable people who have fewer means to cope with them and who take longer to recover, disrupting livelihoods and increasing inequality. Therefore, there is an urgent need to focus on resilience, not only to better prepare for the next disaster, but to improve the well-being of the poor or vulnerable people throughout the world.
 
. . .
 
Through the 100 Resilient Cities Centennial Challenge, The Rockefeller Foundation is inviting cities from around the world to apply to be named one of 100 resilient cities. Applicants, which can be city government officials or major institutions within a city, will be asked to present a clear description of how their city is approaching and planning to build greater resilience at city-scale and in a way that addresses the needs of the poor or vulnerable. Winners will be announced in three rounds over the next three years, with the final round of winners named in 2015.
 
Each winning city will receive three forms of support:

Support to create a resilience plan, along with the tools, technical support, and resources for implementation. The Rockefeller Foundation will deploy its expertise in innovative finance to help cities leverage billions of dollars of potential private sector financial support, as well as public dollars, to realize their plans. 

Membership in a new network The Rockefeller Foundation is creating, the 100 Resilient Cities Network, which will provide support to member cities and share new knowledge and resilience best practices.

Support to hire a Chief Resilience Officer (CRO). The creation of this innovative new role is an innovation that will ensure resilience-building and coordination is the specific responsibility of one person in a city government. The CROs can also oversee the development of a resilience strategy for the city and be part of a learning network of other CROs as representatives to the 100 Resilient Cities Network.

Seems like a great project!

Stephen R. Miller

 

 

Death and Life of Chicago

The New York Times Magazine had a great article about Chicago today with many land use themes, including adverse possession, land trusts, affordable housing, economic development, and much more.  Check it out here.

Stephen R. Miller

Why scholars like special districts

A couple weeks ago, in response to Bill Fischel’s comment on this blog about school districts and special districts, I invited comment as to why scholars are so interested in special districts.  Prof. Christopher Goodman, a professor at Rutgers-Camden, provided a nice commentary on why he is interested in such special districts:

I think most scholars, myself included, are obsessed with special districts (and single purpose governments at large) because their competitive model is so completely different from general purpose governments. Rather than a Tiebout-like model, single purpose districts compete vertically against other single purpose governments stacked on top of them. Imperfect Union by Chris Berry (http://www.amazon.com/Imperfect-Union-Representation-Governments-Institutions/dp/0521758351) is a great starting point for this.

Also, spurred partly by your original posting on the subject and my own research, I've started an entire series on local government fragmentation on my research blog (http://cgoodman.com/2013/05/20/local-governments-in-the-united-states-2012-edition/). I think it helps to visualize these data.

I think Chris’ comments have a lot of merit.  Here are several reasons why I find special districts of interest.

Bill Fischel mentioned the unusual nature of water districts in the west.  As I have spent most of my adult life in the west, I thought that was an interesting idea.  I also wondered, though, if maybe it wasn’t just about water districts, but also about the west’s proclivity for strong taxpayer revolts, such as in places like California.  Many western states have imposed strict limitations on local governments raising money through property taxes, and I have seen the use of special districts in these states as an alternative means of funding locally valued projects.  I think that is one reason that they are of particular interest to me.  Perhaps that interest trends more western, where more states have imposed tax revolt property tax limitations.

I am also interested in special districts because I believe they are valuable tools for helping sub-local governmental entities as well as cross-jurisdictional governmental entities obtain funding they could not otherwise obtain at the local government level.  On the other hand, I suggest that most legal scholars look at these special districts and view them negatively for at least three reasons.  First, these special districts operate “below the radar” of most of the electorate.  The special districts, even when elected and holding public meetings, still often manage to operate in “stealth mode,” and this worries many scholars as to transparency.  Second, that lack of transparency leads many scholars to also worry about a lack of accountability.  Third, many scholars worry about representation within such sub-local groups.  All of these are legitimate issues.  As a matter of personal experience, though, I have seen special districts operating effectively and providing services that would not otherwise be provided, and this has led me to write for the expansion of special districts and sub-local funding structures.

This has been a fun colloquy on special districts, and I welcome more feedback from the blog readership.

Stephen R. Miller

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

HELR dialogue on conservation easements and perpetuity

This post is, in part, one for my co-blogger Jessie Owley who knows far more about conservation easements than I do, but one I felt readers generally might enjoy.  The latest issue of the Harvard Environmental Law Review (Winter 2013) is just out and has two articles that argue both sides of the virtue of perpetuity in such conservation easements, a topic that I just saw Jessie present on at ALPS. 

For those interested, the two articles are Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements by Ann Taylor Schwing (Of counsel, Best Best & Krieger LLP) and Understanding When Perpetual Is Not Forever: An Update to The Challenge and Response to Ann Taylor Schwing by Jessica E. Jay (Conservation Law, P.C.).  Both articles are available here.  Maybe Jessie will even weigh in on the issue! 

Stephen R. Miller

A response from Bill Fischel on school district consolidation, and a query on why special districts continue to fascinate scholars

I was delighted over the weekend to see a response from Bill Fischel (Dartmouth) on my blog post series about local government units.  Bill is undoubtedly well known to many readers of this blog for his work on land use and local government, such as The Homevoter Hypothesis.  Because I find our blog software tends to hide comments, I thought I’d re-post Bill’s comment in italics and then respond.  Here is Bill’s comment on my earlier post:

Stephen, as I show in my 2009 book, Making the Grade, almost all of the decline in school district numbers comes from consolidation of rural, mostly one-room schools, into larger districts. The one-room school statistically disappeared in 1972, and the number of school districts has held steady since then, with very little change in the number of urban and suburban districts. In terms of the districts that serve most of the population, their borders have been remarkably stable for about 70 years.

Special districts are another matter. They have increased, but I remain puzzled as to why they occupy scholars' attention as much as they do. Almost all of them do only one thing, have no general police powers, and tax only those they serve, mostly in proportion to benefits. The major exceptions are western water districts, whose main curiosity is their Court-permitted deviation from popular voting standards.
Bill

Unbeknownst to Bill, I had meant to mention his book, Making the Grade, in a post some time this week because that work had been recommended to me in conversations I had with folks at the U.S. Census, Joseph Dalaker and Liz Accetta, on this subject.  Joe and Liz also pointed me to this excellent presentation Bill did on Making the Grade, which I just watched and would highly recommend:

 

It seemed that this series of posts has generated some interest, and so I decided to go back through the Census data and try to find a way to elegantly portray the data underlying what Bill talks about in his comment.  To that end, I have excerpted Census tables on special districts and school districts from the data source I provided earlier.  Folks who review the data tables at the end of this post (click on tables to enlarge) will find Bill’s assertions above well supported.

That leaves the question Bill has identified in the second part of his comment:  why are scholars so obsessed with special districts? Moreover, are scholars rightfully obsessed with them?  I have several ideas on the subject I will post later in the week.  In the meantime, I thought I’d see if Bill’s comment, and the addition of this data to the discussion, will engender comments before I take my crack at it.

And thanks, Bill, for taking the time to write! 

Stephen R. Miller

 

 

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

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

Solving last week’s local government decentralization riddle: school districts massively consolidated, special districts exploded, and counties and city governments stayed about the same

Last week I posted about some curious U.S. Census data I found that appeared to indicate that the number of local government units had shrunk by 42 percent since 1942, a trend that would seemingly buck conventional beliefs that local governments had, in fact, radically decentralized in the post-World War II era.

I couldn’t let this go, and this week contacted several researchers at the U.S. Census who gave some color to the data.  I thought I would pass along several aspects of what we discussed because it is not readily available on the Census website (or, at least, to someone like me who couldn’t otherwise find it).  Key points: 

--The aggregate numbers of local government units do, in fact, show a decrease in the number of local government units since 1942.

--However, the overall numbers are skewed by the dramatic centralization of one very particular type of local government unit:  the school district.  For instance, in 1942, there were 108,579 school districts but by 2007 (2012 data in this set is being released in the fall) there were just 13,051 school districts in the U.S.  For this data set, there are also numbers for 1932, in which there were 128,548 school districts.  That means we have just over 10% of the school districts in 2007 that we had in 1932 and with about three times the population.  Wow. 

--If you remove school districts from the data, it turns out that the conventional wisdom is right about special districts.  In 1942 there were just 8,299 special districts while in 2007 there were 37,381 special districts.  Wow…and in line with the narrative I typically tell students about proliferation of local governments.

--The number of city and county governments in the U.S. has largely held steady since the 1940s, though with regional variation.

This is really fun data to review.  For those who want to learn more, the data is available here.  Download file “1-3_Govt_Org_Nat_CoArea_ElecOff-1.zip”.  Open file “1_Govt_Org_Nat_State_Counts”.  Click on the “Table 3” and “Table 4” tabs to review data in this blog post.  Unfortunately, the tables are too large to be reproduced meaningfully as a jpeg on this blog, so you’ll have to go to the source if you’d like to see the detailed numbers.

A big thank you to the great folks at the U.S. Census, Joseph Dalaker and Liz Accetta, who provided amazing research assistance and helped me solve this riddle in just a few short days!

Stephen R. Miller

Professors' Corner May 8--Commercial Leasing

As many of you know, the ABA hosts a free "Professors' Corner" teleconference each month, where we have the chance to discuss recent cases and hot topics with scholars and practitioners.  Courtesy of Julie Forrester, here is the info on this month's discussion, which focuses on commercial leasing:

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Real Estate Transactions Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, May 8, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program, moderated by Professor Jim Durham of the University of Dayton School of Law, features a roundtable on Commercial Leasing.  Our two featured speakers will be Professors Celeste Hammond and Professor Daniel B. Bogart, who are co-authors of Commercial Leasing: A Transactional Primer, now in its Second Edition and published by Carolina Academic Press.

Professor Hammond is a Professor of Law and the Director of the Center for Real Estate Law at the John Marshall Law School in Chicago.  Professor Hammond will be discussing “Green” issues in commercial leasing and the implications of this “greening” for landlords, tenants, and their attorneys.  Here is a copy (for your download and preview) of a Powerpoint presentation that will accompany Professor Hammond’s comments:  http://law.missouri.edu/freyermuth/hammondgreenleasing.pptx

Professor Bogart is the Daniel and Marjorie Bollinger Chair in Real Estate Law at Chapman University School of Law, where he serves as both the Associate Dean for Academic Affairs and as the Director of the Center for Land Resources.  Professor Bogart will be discussing some recent leasing decisions of note, including (click on the link for a copy of each decision):

J-Star Holdings, LLC v. The Pantry (Tenn. Ct. App. January 2013) (whether a commercial lease agreement requires the tenant to pay excise taxes imposed on the landlord):  http://www.tncourts.gov/sites/default/files/j-star_opn.pdf

Maida Vale, Inc. v. Abbey Road Plaza Corp., 96 So.3d 1027 (Fla. Ct. App. 2012) (whether a tenant who withheld payment of disputed CAM charges may be evicted for nonpayment of rent): http://www.4dca.org/opinions/August%202012/08-22-12/4D10-2203.op.pdf

Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, 2013 WL 440726 (10th Cir. 2013) (whether a tenant that surrendered the premises without repairing significant property damage as required by the lease can be deemed to have held over while landlord effects repairs so as to permit landlord to collect rent during that period):  http://scholar.google.com/scholar_case?case=16297268405506062242&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Matt Festa