Saturday, October 10, 2009
Keith Hirokawa (Albany) has published At Home with Nature: Early Reflections on Green Building Laws and the Transformation of the Built Environment in Environmental Law. The abstract:
Green building, which was formalized only fifteen years ago to promote healthier and more efficient building practices, has exceeded virtually all predictions of its potential. Green building has entered markets in almost every major city in the United States, while developing as a sophisticated basis for investment, human health, and conservation. Stated otherwise, green building is no longer a fringe environmental policy and, as argued in this Article, is even shedding its markings as a political ideology.
This Article examines two parallel but distinct consequences of the green building movement. First, by considering the major challenges to green building, this Article examines the conditions for success of the movement – how green building has become acceptable to consumers, the construction industry, and building regulators. Second, this Article explores the relationship between the goals and methods of green building laws and argues that green building compels a transformative, constructivist effect on humans’ place and position in nature. This Article ultimately argues that green building is special because of its pluralistic approach to regulation, ethics, and even to nature itself.
- Matt Festa
The Cato Institute has released a new study titled How Urban Planners Caused the Housing Bubble (Policy Analysis, No. 646, Oct. 1, 2009). Its author is the economist Randal O'Toole, who has been a leading critic of land use planning and regulation (he writes a blog called The Antiplanner, and his most recent book is The Best-Laid Plans: How Government Planning Harms Your Quality of Life, Your Future, and Your Pocketbook (Cato 2007). From the Executive Summary:
Between 2000 and the bubble’s peak, inflation-adjusted housing prices in California and Florida more than doubled, and since the peak they have fallen by 20 to 30 percent. In contrast, housing prices in Georgia and Texas grew by only about 20 to 25 percent, and they haven’t significantly declined.
In other words, California and Florida housing bubbled, but Georgia and Texas housing did not. This is hardly because people don’t want to live in Georgia and Texas: since 2000, Atlanta, Dallas–Ft. Worth, and Houston have been the nation’s fastest-growing urban areas, each growing by more than 120,000 people per year.
This suggests that local factors, not national policies, were a necessary condition for the housing bubbles where they took place. The most important factor that distinguishes states like California and Florida from states like Georgia and Texas is the amount of regulation imposed on landowners and developers, and in particular a regulatory system known as growth management.
In short, restrictive growth management was a necessary condition for the housing bubble.
I think there is something to this critique, although I don't quite know if the solution should be to eschew planning altogether. To be sure, geography plays a role: California's cities are limited by water and mountains, whereas in Houston . . . well, how far out are you willing to build (or live)? But the growth-management response has also had an impact on pricing: the harder you make it to develop land, the more expensive it will be to do so. Last year University of Washington economist Theo Eicher produced a study asserting that at least $200,000 of the increase in the median home price in Seattle was attributable to land use regulations--particularly due to the state's 1990 Growth Management Act.
It is certainly worth considering even if you don't agree with everything in the study. Thanks to Laura Rhea for the pointer.
- Matt Festa
Friday, October 9, 2009
I'll have more posts in the future about what local governments might do to decrease the magnitude of boom-and-bust housing cycles that wreak havoc on cities and communities. To address the current housing crisis, cities across the country are imposing obligations on banks as well as purchasers of foreclosed houses to maintain housing exteriors. A new Nevada law is here, and a newspaper article introducing it is here. Creola Johnson also has a nice article (Fight Blight: Cities Sue to Hold Lenders Responsible for the Rise in Foreclosures and Abandoned Properties, 2008 Utah L. Rev. 1169 - I don't have a link to SSRN) that analyzes the tensions in more detail. It will be interesting to see if the costs of local mitigation efforts slow purchases of foreclosed houses. Purchasers have to pay, or get waived, costs the city incurs in cleaning up neglected, foreclosed properties.
The American Planning Association has come out with its list of great neighborhoods for 2009 (it has also listed great streets and great public spaces). Among the top ten great neighborhoods is Houston's Montrose neighborhood. Eclectic, diverse, historic, and (somewhat) walkable, Montrose is a very interesting and enjoyable neighborhood within Houston's generally sprawling and automobile-dependent layout. It has arts, including the famous Menil Collection, a Catholic university, shopping, dining and entertainment, is home to the GLBT community, and has diverse array of housing options. But on this blog I have previously asked the question of whether good land use can happen in a city without traditional zoning, and the Houston Chronicle's article on the APA list offers some points worth pondering:
Montrose, the central Houston community known for its diverse lifestyles, vibrant street life and stately historic homes, is being honored by the American Planning Association today as one of the country's 10 great neighborhoods.
Houston's sprawl, absence of zoning and reputation for haphazard development might make its recognition by the national planning establishment something of a surprise. Yet the qualities cited in the award for Montrose — its walkable street grid, carefully preserved historic districts and eclectic mix of homes and businesses — reflect Houston's preference for private rather than government-imposed planning, experts said.
In the early 20th century, long before it became the focus of slum-clearing urban renewal projects or the heart of Houston's gay and lesbian community, Montrose was an elite master-planned suburb, said Stephen Fox, a Rice University architectural historian.
“Its planning has really come from the developers of the individual subdivisions rather than representing any public policy,” Fox said.
A walkable area
Robinson, an architect who serves on Houston's City Planning Commission, said the award shows that effective planning need not be imposed through heavy-handed government policy.
“It doesn't have to always be a prescribed method of growth,” Robinson said. “It's organic. The street grid, the sidewalks have meant that without zoning and for the most part without restrictive covenants, the area has been able to grow and adapt.”
The street grid — a web of straight streets with short blocks and none of the cul-de-sacs favored in suburban neighborhoods — has helped keep Montrose walkable since the days when people stepped off streetcars and walked to homes or shops, Robinson said.
Marlene Gafrick, Houston's director of planning and development, said the award should help to dispel Houston's undeserved reputation as an unplanned city.
“I believe planning occurs at many levels, and one of the differences between Houston and a lot of cities is that a lot of our planning comes from the ground up rather than the top down,” she said.
Traditional, organic, pedestrian-friendly neighborhood development with diversity, mixed uses, and an eye toward historic preservation-- all in the Unzoned City? The truth is that there is a more complex array of forces at work that have shaped the neighborhood, both regulatory and private, and that there are tradeoffs even in a "top ten" neighborhood. But the baseline for Montrose's development has been private neighborhood planning and the absence of comprehensive zoning, and that might mean something.
Thanks to Tory Gattis's excellent Houston Strategies blog for the pointer.
- Matt Festa
Almost every jurisdiction has some form of a minimum parking requirement as part of their zoning code or subdivision regulations. This has always been a curious thing to me.
"Curious" because the legal rationale (health, safety, general welfare) is not nearly as clear as, say, maximum stories, lot use, or even signage or landscaping regulations. Ultimately, one might reasonably ask "Why do cities require minimum amounts of parking?"
This is especially curious when most places where you seem these requirements (such as your local strip mall) rarely end up using all, or even most, of the mandated spaces. Indeed, even at the most popular Publix here in Montgomery, the huge lot is rarely more than half full. That's alot of asphalt and striping paint and (resulting stormwater runoff from the impermeable surface) that the law requires to be built even though its rarely used.
Donald Shoup's book, The High Cost of Free Parking, does an excellent job detailing how parking requirements actually end up hurting the public health, safety, and general welfare more than helping. The result is a strange type of police power contango where the intended good ends up bad and vice versa.
The reason this land use topic popped back into my mind today was a recent Washington Post article discussing how the District is re-evaluating whether it's laws should actually mandate certain amounts of parking--especially the off-street/on-site variety:
The empty garage is part of the evidence that District officials cite as they rewrite 50-year-old regulations so they will no longer require developers to build a minimum number of parking spaces for new retail outlets, offices and apartments in areas near Metro stations. Instead, the District would like to leave it to developers to analyze market conditions and determine the appropriate parking levels.
Read the whole article here.
Thursday, October 8, 2009
Tomorrow in the Land Use Clinic seminar we'll be talking about environmental justice. The Clinic got involved in environmental justice issues about two years ago, at the request of our colleagues at the Atlanta public interest law firm GreenLaw. GreenLaw has been involved in environmental justice issues for many years now - environmental justice being defined by the EPA as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, culture, education, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." GreenLaw asked for the Clinic's help in working for environmental justice in the drafting and application of local land use law in Georgia communities.
According to Clifford Rechtschaffen and Eileen Gauna, authors of Environmental Justice: Law, Policy & Regulation, the disproportionate siting of environmental hazards in minority neighborhoods has its origin in land use and zoning practices over the last century. Some of the decisions were based on deliberate racism - e.g., restrictive racial covenants and racially discriminatory zoning. Urban Renewal played a role in displacing thousands of black residents from residential neighborhoods.
Also, according to Yale Rabin, in the early part of the last century many jurisdictions engaged in what he calls "expulsive zoning," by zoning areas predominantly occupied mainly by blacks for industrial or commercial uses, thus displacing the residential uses in these zones. Robert Bullard refers to this strategy as "PIBBY" or "place-in-blacks'-backyards."
Other scholars, including Robin Saha and Paul Mohai, have pointed to economic factors in disproportionate siting and zoning of industrial uses in minority neighorhoods, including low property values in these areas and the reduced likelihood of community opposition (since better educated, more affluent communities are better able to wage opposition campaigns).
Rechtschaffen and Gauna also implicate "structural racism," which encompasses more than explicit racism, classism or political factors:
A broader view of discrimination encompasses actions that are not intentionally racist, but because of the structure or workings of social and political institutions, have discriminatory effects. For example, an all white zoning board may render decisions with discriminatory effects because of unconscious racial prejudices, or because minority citizens, who do not live in the same neighborhoods and are not part of the same social networks as the board members, have less access to them...seemingly technical criteria - such as that a facility should not be sited in proximity to schools, hospitals, or other sensitive institutions - can discriminate against minority residents who because of past and present housing discrimination disproportionately live in areas without such facilities.
Whatever the varied causes, research by John A. Hird and Michael Reese and others demonstrates that, regardless of class or income, pollution is distributed in a way that disproportionately affects people of color (although some subsequent research refutes these findings).
It's a complicated issue. I'll talk about solutions to these problems that we are trying to implement with our clients in subsequent posts.
Jamie Baker Roskie
Land use and housing policy are in many ways inextricably woven together. For instance, a large portion of a municipality's land development involves residential units. In addition, the budgets of many local planning departments often find themselves filled with large chunks of federal grants and aid--typically aimed at community redevelopment with an emphasis on housing.
That's why the ongoing foreclosure crisis is in many ways also a land use crisis.
The federal government seems to have recognized this and is channeling significant amounts of money into programs whose goal is to address residential housing. One example is the HUD-administered Homeless Prevention and Rapid Re-Housing Program.
The efficacy of these programs is certainly open to wide debate. However, while doing some research on them, I ran across this story from the Detroit News that really struck me as sounding like something straight out of the Great Depression:
Thousands hoping to get applications for federal help on rent and utility bills turned Cobo Center into a chaotic scene today.
They came by foot, wheelchair, bicycle and car. About six left by ambulance after tensions rose and people were trampled, according to a paramedic on the scene. One unfortunate soul got his car booted.
Detroiters were trying to pick up 5,000 federal assistance applications from the city at Cobo because Detroit received nearly $15.2 million in federal dollars under the Homeless Prevention and Rapid Re-Housing Program, which is for temporary financial assistance and housing services to individuals and families who are homeless, or who would be homeless without this help. People in wheelchairs and others using canes were being leaned on by people too weak to stand. Emergency medical technicians on the scene said they treated applicants who were injured during the rush to get inside the venue.
That's what happens when a town full of broke people gets a whiff of free money, said Walter Williams, 51, who came before the sun to get an application and a shot at some federal assistance.
"This morning, I seen the curtain pulled back on the misery," he said. "People fighting over a line. People threatening to shoot each other. Is this what we've come to?"
Even for someone who has researched, wrote on, and closely follows the current housing situation, this was startling on many levels.
One might reasonably wonder if federal housing intervention could soon end up affecting local land use regulations in expansive ways. After all, HUD projects and initiatives are oftentimes exempt from such regulations. Chad Emerson
Wednesday, October 7, 2009
Chicago has been in the news for its unsuccessful bid to host the world's most prominent international event, the Olympic Games. In Part I of this post I discussed the first time that Chicago played host to the world: the 1893 World's Columbian Exposition, and in particular the indelible impression on American culture made by Daniel Burnham's White City. Again, see the pictures for yourself, and read Devil in the White City if you haven't yet. Now, for the impact of Burnham and the Exposition on the city planning movement.
Not only did the White City make a deep impression on many visitors to the Exposition, it is also credited with launching the City Beautiful movement in the U.S. Indeed, Burnham is seen by many as the father of the City Beautiful movement, with help from Olmstead. If you look at the National Mall (designed in part by Burnham and Olmstead) it looks something quite reminiscent of the White City. The City Beautiful movement certainly had a lot to do with specific architectural preferences, but it had more to do with the larger design elements—the overall grandeur of the buildings’ arrangement; the sweeping public spaces with elaborate landscape architecture; and the overall moral impression that the design was supposed to have on the citizenry. In other words, the White City represented an early attempt going into the 20th Century to do comprehensive land use planning. Burnham’s famous quote from the Exposition sums it up: “Make no little plans; they have no magic to stir men’s blood.”
Burnham himself went on to become the early face of the city planning movement. While even many contemporary planners and architects, such as Louis Sullivan and Frank Lloyd Wright, disagreed with Burnham’s particular plans and preferences, his influence on the rise of land use planning is undeniable (The APA named its national award for comprehensive planning after Burnham). He advised cities around the world on designing their plans. The bookend to the Columbian Exposition for his legendary career was the 1909 Plan of Chicago (also known as the Burnham Plan), largely acknowledged as the first comprehensive plan for a city.
The Plan, coauthored with Edward Bennett, promoted City Beautiful principles and provided a master design for Chicago including transportation, infrastructure, parks, street design, and civic and cultural centers. The Plan was monumental in Chicago and was highly influential across America. Within the next decade many U.S. cities began adopting the comprehensive plans and zoning ordinances that brought the early planning movement to fruition, and remain the basis of land use planning today. The story of the Plan is told in a great book by Northwestern historian Carl Smith, The Plan of Chicago: Daniel Burnham and the Remaking of the American City.
So while Chicago may be feeling bad about missing out on the Olympics, it can look with pride on the tremendous impact that its first global event had on the development of city planning and land use. Tomorrow, October 9, is the anniversary of Chicago Day, when 761,942 people attended the Exposition, obliterating the previous single-day attendance record held by Paris. And perhaps the city can console itself in 2009 by celebrating the centennial of the Plan of Chicago.
- Matt Festa
Link to Part I is here.
Here are links to some new or forthcoming articles related to land use that have been posted recently on SSRN:
Michael C. Blumm (Lewis & Clark), The Public Trust Doctrine: A Twenty-First Century Concept, Hastings West-Northwest Journal of Environmental Law & Policy.
Robert C. Ellickson (Yale), Legal Constraints on Household Moves: Should Footloose Americans Envy the Rooted French?, (working paper).
Teri Fair (Suffolk--Political Science), Assessing the Impact of Land-Use Policies on Urban Community Resilience, (working paper).
James J. Kelly, Jr. (Baltimore), Land Trusts that Conserve Communities, DePaul Law Review.
George Lefcoe (USC), After Kelo, Curbing Opportunistic TIF-Driven Economic Development: Forgoing Ineffectual Blight Tests; Empowering Property Owners and School Districts, Tulane Law Review.
John Copeland Nagle (Notre Dame), Cell Phone Towers as Visual Pollution, Notre Dame Journal of Law, Ethics, & Public Policy.
Patricia Salkin (Albany), Modernization of New York's Land Use Laws Continues to Meet Growing Challenges of Sustainability, Pace Law Review.
Peter W. Salsich (Saint Louis), National Affordable Housing Trust Fund Legislation: The Subprime Mortgage Crisis Also Hits Renters, Georgetown Journal on Poverty Law Policy.
Christopher Serkin (Brooklyn), Entrenching Environmentalism: Private Conservation Easements Over Public Land, University of Chicago Law Review.
- Matt Festa
I remember walking or biking to school almost every day between 3rd and 8th grades. The few exceptions involved rainy or snow-filled days but, even in those instances, my elementary and middle schools were both within close walking distance.
These days, the experience of walking or biking to school is going the way of the betamax player in many communities--replaced with that newly ubiquitous vehicular trail of tears known as the carpool line.
One of the main drivers (pun, semi-intended) of this change is a set of school site and building regulations that make building neighborhood-based schools very difficult and, in some cases, downright impossible.
Awhile back, I wrote a law review article for McGeorge on the topic. It sets out some of the issues begetting this problem.
Recently, I became aware of new resource that a friend and neighbor of mine created: the Smart Growth Schools Report Card.
This cleverly titled document is not limited to only legal issues that make car-centric schools a concrete reality as it includes an analysis of design and political factors, too. However, it does address legal and regulatory "mandates" in a concise and creative way.
Take a look. And, when you're done, consider whether a land use regulatory scheme that makes walking to school an unlikely reality is a good idea.
Just a quick follow up to Chad Emerson's post about urban farming; the sub-issue of urban chickens. There's a fun article in a recent New Yorker magazine about raising chickens in an urban environment. The author briefly discusses the regulatory implications of raising chickens in a residential neighborhood. This has also been a hot issue here in Athens, Georgia. Last year a local couple got crossways with the city over chickens they were keeping in their backyard. As of this date, debate continues over whether to amend local ordinances to allow chickens in in-town neighborhoods.
Jamie Baker Roskie
Tuesday, October 6, 2009
Much has been written in the past few years about the death of the suburbs. Nevertheless, they remain ubiquitous. Chief among the anti-suburb writers, James Howard Kunstler, author of The Geography of Nowhere, paints a depressing picture about the effects of sprawl, a condition that arguably destabilizes society by producing alienation and anxiety. Kunstler describes the problem in The Long Emergency 18-19 (2005) in even bleaker terms:
“As the suburbs disintegrate, we will be lucky if we can reconstitute our existing traditional towns and cities brick by brick and street by street[.] Our bigger cities will be in trouble, and some of them may not remain habitable . . . . If we return to a human scale of building, there’s a good chance that our new urban quarters will be humane, which is to say beautiful. The automobile era proved that people easily tolerated ugly, utilitarian buildings and horrible streetscapes as long as they were compensated by being able to quickly escape the vicinity in cars luxuriously appointed with the finest digital stereo sound, air conditioning, and cup holders for iced beverages. This will change radically.”
The smart growth movement is one attempt, among others, to address the negative effects of sprawl reported by Kunstler. New Urbanist communities like Playa Vista near Los Angeles, California; I’On in Mount Pleasant, South Carolina; and Rosemary Beach, Florida, illustrate this trend. Without variances in single use zones, however, most smart growth communities could not be built. I’On faced years of litigation, for example. As many cities start to re-evaluate their comprehensive plans, smart growth concepts will likely be embraced, due in part to the success of these projects. Whether these communities will ultimately solve the problems Kunstler identifies, however, remains to be seen, even as they indicate a good start.
Will Cook, Charleston School of Law
But, even more than both of those, it's planting time this Saturday. Some carrots, peppered with onions, a little kale, maybe a few potatoes, and various asundry other "greens" and root vegetables that Montgomery's temperate climate allow us to grow in the winter. So, this weekend, I'll be placing the seeds (except for the potato where you just put the entire potato back into the ground and "Walla!" it sprouts) in this weekend with the hope of a nice bounty beginning circa late December 2009.
All of this is just fine since both the town where we reside and the neighborhood where we live allow for backyard gardens. However, with self-farming and local produce growing in popularity, several people aren't as fortunate as us.
This story discusses the legal/regulatory debate that is taking root across the country regarding zoning laws and home gardens:
New Castle County is among dozens of local governments nationwide dealing with the intersection of lifestyle and land use as a recession-fueled interest in urban farming collides with strict laws originally drafted to keep neighborhoods clean and tidy...
...Whether it's suburbanites keeping a few cluckers in the backyard or city residents tending rooftop vegetable gardens, urban farming is gaining appeal, McCrea said, because it gives people a little control in a world where fears about the food supply are on the rise. Even First Lady Michelle Obama is getting in on urban farming, planting an organic vegetable garden at the White House to tout the benefits of healthier eating.
I thought I would share an article that appeared in today's Washington Post about the White House Office of Urban Affairs. As land use aficionados well know, a long list of federal policies, including public housing, highway funding, and initiatives encouraging sprawl, have hurt the development of cities. The Office of Urban Affairs will hopefully offer a refreshing change of direction and pace. To date, the Office appears to have done more planning than other activities. Here are some additional thoughts from Bruce Katz (Brookings Institution) on what the Office could accomplish.
Monday, October 5, 2009
Everyone has been talking about the International Olympic Committee’s rejection of Chicago’s bid to host the 2016 Summer Olympic Games. Most of the commentary has been about the Games themselves or about the politics of the bid and the President’s personal involvement on behalf of his hometown. But it also makes me think of the most important global event that Chicago has hosted: the 1893 World’s Columbian Exposition. And, naturally, I think about its impact on land use planning.
The World’s Columbian Exposition was conceived as a commemoration of the 400th anniversary of Christopher Columbus “discovering” the new world; but more importantly, the intent was for America to show the world (particularly Europe) that We Had Arrived. Extraordinary and highly successful “world’s fairs” had been put on in London’s Great Exhibition (1851)—famous for the Crystal Palace—and Paris’s Exposition Universelle (1889) –where the brand-new Eiffel Tower served as the entrance. In a surprise move, Congress turned down New York’s bid to host the Columbian Exposition, spurning the cultural capital in favor of upstart Chicago, a young city of commerce, manufacturing, and transportation, only recently rebuilt from the Great Chicago Fire of 1871 spuriously attributed to Mrs. O’Leary’s cow.
The Columbian Exposition in Chicago was a massive undertaking. Though the issue was in serious doubt, it turned out to be hugely successful. It had impressive displays of American art, technology and innovation. It also had the popular Wheel (the first one designed by George Ferris) among other firsts and attractions. For historians, it was where Frederick Jackson Turner presented his frontier thesis. The Exposition lasted six months (think of that, Chicagoans—makes the Olympic Games seem like an afternoon wiffle ball game in comparison) and total attendance estimates vary from 20 to 27 million, at a time when the total U.S. population was only about 63 million. Erik Larson tells the story of the Exposition (intertwined with that of a serial killer) in his bestseller Devil in the White City: Murder, Magic, and Madness at the Fair that Changed America.
By far the most significant and memorable part of the Exposition was the midway Court of Honor. Its buildings were indeed white (hence the “White City” as it was popularly known) and impressed visitors with their neoclassical and Beaux Arts architecture. See pictures here and here. The effect is said to have inspired visions from the Lincoln Memorial to the Emerald City of Oz (I know, that one's green) to Walt Disney’s Magic Kingdom. But perhaps even more important than the design of the buildings was the design of the overall plan. The chief designer of the Exposition and the driving force behind its organization was the famous Chicago architect Daniel Burnham. With Frederick Law Olmstead in charge of the landscape architecture, Burnham’s White City was a master plan of buildings with the great domed Administration Building overlooking a marvelous, sweeping public plaza, with gardens and water designs in the large public space, and surrounded by the neoclassical buildings. And Burnham devoted almost as much attention to functionality and infrastructure as he did to aesthetics.
In Part II of this post I will discuss how Chicago's Columbian Exposition led to the comprehensive plan for land use and the rise of the city planning movement in the U.S. So cheer up, Chicago!
- Matt Festa
Link to Part II is here.
Over the weekend I read with interest a piece in The New York Times about a battle in a New Orleans suburb over the building of affordable housing. The author paints it in the particular light of the struggle to rebuild after Katrina, but this is a dynamic that is prevalent elsewhere. Much of it has to do with race, and not just in St. Bernard Parish, Louisiana. I see it many places that I work with affordable housing organizations, much as we might wish we lived in a post-racial world. It seems that when the possibility arises that minorities might move into a non-minority neighborhood the temperature goes way up, and ugly things are often said and done.
One reason to have hope, though, is that the Kellogg Foundation is beginning to support community-based work on racial healing. They plan to make it a local, regional, and national dialogue. If all goes well some of my colleagues here at UGA will be involved in this dialogue, so I look forward to posting more about it as time goes on.
Jamie Baker Roskie
P.S. Over the weekend my co-editor Matt Festa blogged about the end of the universe as evidenced by three Starbucks on one corner. I've discovered the true end of the universe - there will soon be a McDonald's at the Louvre. Naturally the French are outraged.
As I blogged before, this semester I'm having my Land Planning and Development students engage in a simulated infill development project in a small group setting.
Today, we're headed on one of our site visits to the traditional neighborhood development in Montgomery known as Hampstead. This DPZ-designed community is filled with a mixture of uses--from agriculture (an all natural farm) to denser commercial and residential units. We'll examine the legal and regulatory issues faced by this type of development diversity.
So far, this is our 4th site visit class and I've found that the students really seem engaged when we're in the field. That makes sense. After all, land development is a very hands-on area of law.
In addition to the site visits, as part of the course, each of the four small groups have also created their own blog. The assignment related to this was purposefully general: create and keep a blog that discusses interesting issues/events that come up during the course as part of the development simulation.
Sunday, October 4, 2009
"Heirs property" is a special type of property found primarily in the coastal zone from Eastern North Carolina to Jacksonville, Florida. In South Carolina, this area is called the Lowcountry, which includes Beaufort, Berkeley, Charleston, Colleton, Dorchester, and Georgetown counties. The counties face intensive development pressures, as the demand for coastal property grows in tandem with rising real prices. Heirs property is a problem today because the owners of this property have inherited it by intestate succession, instead of by devise under a will. (Historical note: The root of the title usually traces back to a single owner in the Reconstruction Era, when freed slaves were allowed to purchase property from the federal government. At that time, this usually meant the least desirable property near saltwater rivers or marshes, areas most pre-Cival War landowners then avoided because of malaria fears and flooding. Today, this land is incredibly valuable, due to the intense demand for waterfront property and high real estate prices.)
The practical problem with intestate succession is that in regards to heirs property, this usually means hundreds of co-owners or tenants in common--a pie sliced into hundreds of thin slices owned by hundreds of different co-owners. Only some of these owners, however, actually possess the property, even though any one of them (and regardless of the amount of his or her interest or degree of attachment) can bring a partition action to force its sale. (Usually, one of the co-owners transfers his interest to a developer by a quitclaim deed; the develper then seeks to partition.) This often results with a family who has lived on the land for decades facing eviction. Families in possession are often unable to afford the fair market value of the property to buy out fellow heirs, and face steep transaction costs in trying to find and negotiate with them--the assembly problem. This is a problem that the Center for Heirs Property Preservation tries to solve.
Although adverse posession might seem like a natural theory to help establish title in the families who have occupied and treated the property as its true owners, South Carolina appears to be in a super-minority of jurisdictions for two reasons: First, South Carolina law precludes one family member from using adverse possession against another unless the one asserting the theory has attempted to oust other co-heirs. As a practical matter, this won't work because the owners in possession believe they own the property, and usually don't know about the existence of other co-owners. Second, for this same reason, hostility can't be proven, either. South Carolina's appellate courts appear to recognize this problem, but so far have not squarely adopted an objective view of adverse possession that would make intent or ouster of unknown heirs irrelevant. Until that occurs, the state of the title of heirs property will remain unclear.
Will Cook, Charleston School of Law
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