November 7, 2009
Bikes & Cars & Cities
In Los Angeles, a doctor has been found guilty of reckless driving, battery, assault with a deadly weapon (his car), and "mayhem," and could face ten years in prison, for braking in front of two bicyclists. Here's the story (with video) on the verdict. The LA Times article from just before the verdict indicates that the case has drawn national attention from the cycling community:
For the last three weeks, the assault trial of Dr. Christopher Thompson has drawn the attention of cyclists nationwide but has especially galvanized the swelling ranks of Los Angeles' tight-knit cycling community, whose members have long felt like second-class citizens in a city in love with its cars.
The case is being tried at a time when more people are turning to two wheels for commuting and recreation. Cyclists are asserting their rights as never before. In Los Angeles, advocates are pushing for more bike lanes and other road improvements, a cyclists' bill of rights and more protection from police.
At a time when there seems to be more and more momentum against automobile dependence and in favor of personal ambulation in the city for health, environmental, and civic reasons, cycling activists are pushing for more laws and policies to promote bike lanes and bike-friendly development. Vancouver seems to have found some success with a bridge bike lane, as reported by the Vancouver Sun:
The Burrard Bridge bicycle lane trial has been a success with cyclists, pedestrians and drivers, according to a survey conducted this fall. That approval could result in bike lane access to be extended well past this February’s 2010 Winter Olympic Games.
It's not entirely clear from the article why the bike lane is a result of planning for the Olympics, but I presume it has something to do with pedestrian traffic for the events. Meanwhile, though, in Paris, a much more utopian scheme to put the City of Light on two human-powered wheels seems to have stumbled. The New York Times reports on the significant theft and vandalism that have hurt Paris's urban bike rental program in French Ideal of Bicycle-Sharing Meets Reality:
PARIS — Just as Le Corbusier’s white cruciform towers once excited visions of the industrial-age city of the future, so Vélib’, Paris’s bicycle rental system, inspired a new urban ethos for the era of climate change.
Residents here can rent a sturdy bicycle from hundreds of public stations and pedal to their destinations, an inexpensive, healthy and low-carbon alternative to hopping in a car or bus.
But this latest French utopia has met a prosaic reality: Many of the specially designed bikes, which, when the system’s startup and maintenance expenses are included, cost $3,500 each, are showing up on black markets in Eastern Europe and northern Africa. Many others are being spirited away for urban joy rides, then ditched by roadsides, their wheels bent and tires stripped.
With 80 percent of the initial 20,600 bicycles stolen or damaged, the program’s organizers have had to hire several hundred people just to fix them. And along with the dent in the city-subsidized budget has been a blow to the Parisian psyche.
“The symbol of a fixed-up, eco-friendly city has become a new source for criminality,” Le Monde mourned in an editorial over the summer. “The Vélib’ was aimed at civilizing city travel. It has increased incivilities.”
Somewhere between utopia, land use regulation, and the market may lie the plan to increase bike friendliness.
November 6, 2009
In Local News...
Here in Athens, Georgia we didn't have a local election on Tuesday, but there is some interesting downtown development news. The Athens-Clarke Commssion (we're a consolidated city/county) just voted to construct a new parking deck downtown, over the last minute objections of some Athens residents that the deck is too big and not needed. However, there is a waiting list for the other parking deck downtown. Also, the Commission must spend the money, as it has already been allocated by referendum as part of our Special Local Option Sales Tax. Also, the site currently houses a parking lot, so the aesthetic arguments didn't carry much weight with the commission.
This particular intersection is also of interest because it is the home of the historic Georgia Theater - at least, the shell of the Georgia Theater, much of which was destroyed by a fire earlier this year. The rebuilt theater will be part of the mixed-use complex that will be built as part of the parking deck. The theater is a much beloved landmark here in Athens, which has a vibrant local music scene. Since it was built in 1889 the theater has been a YMCA, a Masonic lodge, a church, and a music venue hosting 100s of bands, including R.E.M., The Police and the B-52s. The theater owner had just renovated the entire theater prior to the fire, and his casulty insurance won't cover the whole loss. Therefore the Georgia Trust for Historic Preservation has agreed to help the theater raise $1.5 million for restoration. If you donate $100 your name goes on a brick in the new space - a cool way to be part of history remade.
Jamie Baker Roskie
November 5, 2009
Atlanta is America's Most Toxic City
My colleague Helen Kang, director of the Environmental Justice Clinic at Golden Gate University, just sent me a link to this article on Forbes.com proclaiming Atlanta the nation's most toxic city. But, look out Matt Festa, Houston's hot on Atlanta's heels at number three on the list. Take heart, though, Matt. Houston's air is so polluted that it's become a world hot spot for air pollution research. It's always good to be cutting edge!
The article lauds New York as less toxic due to its excellent public transportation system (and related density) and Portland as a model of land use planning. This lends even more support to the premise of Professor Nolon's article, which I blogged about earlier today.
Jamie Baker Roskie
Climate Change & Land Use
Over the last week or so there has been an debate on the Environmental Law Professors listserv about climate change. John Nolon sent an interesting overview of his latest article on how encouraging more compact land use addresses climate change and a host of other environmental concerns. Following is the text of that e-mail, posted here with Professor Nolon's permission.
'One of the ways of appealing to the priority environmental concerns of Americans, which do not yet include climate change, is to focus on policies that reduce carbon dioxide through compact, mixed use developments that improve energy efficiency in buildings and reduce driving. In a forthcoming article in William & Mary Environmental Law & Policy Review, I calculate that doubling the density of future development, as 100 million more Americans join the population in the next three decades, will decrease carbon dioxide emissions by 1.2 Gt/yr compared to housing them at current densities.
"The article suggests that focusing on land use settlement patterns may be one method of reaching the hearts and minds of Americans. Here are two excerpts [footnotes and calculations omitted]:
Illustrative of the type of development that is within the power of municipalities to encourage, and that reduces energy consumption and CO2 emissions, is Hudson Park, which is an enhanced transit oriented development project in Yonkers, New York. Located next to the main commuter rail station in the downtown, it is designed for and marketed to young professionals, most of whom commute to Manhattan or one of the other New York City boroughs. Hudson Park occupies 4.362 acres and contains 560 rental apartments, along with 15,000 square feet of commercial and office use.
The density of this development is 128 dwelling units per acre, much more than the 15 dwelling units per acre used for the climate change mitigation calculations above, but somewhat typical of the residential density needed around express-stop transit stations to generate the ridership required to make commuter rail service economically viable. If we could shift 25 percent of the nation’s next 100 million residents (25 million people or 10 million households) from single-family dwellings on quarter acre lots to developments such as Hudson Park, the corollary benefits to the environment would be dramatic. To illustrate, such a shift would prevent 876,951 acres of impervious coverage, and achieve annual reductions of 477 billion gallons of stormwater runoff and 394 billion gallons of potable water consumption.
Professor Nolon has written extensively and interestingly about what he terms "local environmental law" and how land use impacts environmental concerns. I'm looking forward to reading this forthcoming article.
Jamie Baker Roskie
November 4, 2009
U.S. Home Construction and the Mexican Economy
Last night on NPR I heard a very interesting story about how the crash of the home construction industry in the United States has impacted the Mexican economy. Listen to it here. (As a former immigration practitioner I'm always interested in how my two areas of interest - migration and land use - intersect.) The story is about how many Mexican migrants - particularly men who had been working in the construction industry - have been unable to send money home to Mexico. They interviewed the manager of a microlending bank in Mexico who said that, for a time, remittances were actually reversing. Families were borrowing money to send to their relatives in the U.S., to tide them over until they could find new jobs. The cash flow is slowly returning to its old pattern, but some young people in Mexico are resisting the urge to cross the border looking for jobs. However, with the Mexican economy expected to recover much more slowly than the U.S., the northward pressure is likely to resume.
Jamie Baker Roskie
The Home-Buying Tax Credit Fallacy is Growing...
As one of my earlier posts noted, the $8,000 tax credit for first time homebuyers was originally a bad idea because, among other reasons, it allowed the same practice (extremely low down payment amounts--as low as 3.5% in some cases) that contributed to the ongoing housing crisis in the first place.
Fortunately, the tax credit was slated to end later this month.
Unfortunately, further proving that no bad idea can't be made worse, Congress is on the cusp of extending that tax credit into next spring as well as expanding it beyond non-first time home buyers.
The Angry Bear blog has a good post on why this is another bad idea that is more likely to benefit special interests than individual residents:
Egads! I can see why real estate professionals and people who will get the windfall would support this. But it is hard to believe that it makes sense to provide more tax breaks for housing, especially when it is only to a select group that just happens to be in a position to purchase this year, who are already likely to get pretty darned good deals anyway, and especially if it includes well-off couples who make almost a quarter million annually (the current credit phases out starting at $150,000 for couples)? Especially when this extension alone will cost us another $17 billion or so.
--Chad Emerson, Faulkner U.
Land Use and the Municipal Bond Crisis...
While the story is starting to gain traction, the plight of municipal budgets remains woefully underreported. Maybe its the fact that the federal and state governments are so stimulus-happy that some just assume that cities and counties would be enjoying the easy money party, too.
That would be an incorrect assumption, though. In fact, municipal budgets are caught in a real fix--declining revenues on one hand (less sales tax, less property tax, and less income tax lead the way) with increasing expenses on the other (underfunded pensions and health care plans win the gold and silver medals in this area).
Several cities, such as Vallejo, California and Prichard, Alabama have gone so far as to declare bankruptcy. In some states, though, that's not a legally-permissible option.
Which leads to a question very pertinent to this blog: how will the dire fiscal straits of municipal governments affect land use?
One thought is that jurisdictions will try to raise fees to make things like inspections and engineering reviews more revenue self-sufficient. However, with development falling off a cliff over the last 18 months, raising fees won't help much since there aren't many developers paying fees in the first place (if you need a good anecdote to show this, check out recent planning commission agendas where you live and note how they compare to pre-2008 meetings).
Well, this recent story provides some interesting background on the ongoing municipal crisis that includes a note about how land use and development could play an interesting role as the drama further unfolds:
Without bankruptcy protection, a city that couldn’t pay bondholders would be forced to raise taxes until it could. This happened to West Palm Beach, Florida in the Depression and property tax rates rose to 42.5 percent of assessed value. Potentially bondholders might demand that the city hand over real estate to satisfy its debts.
--Chad Emerson, Faulkner U.
November 3, 2009
Las Vegas water pipeline potentially plugged
The Southern Nevada Water Authority (SNWA) received a setback to its proposed pipeline to pump groundwater from Northern Nevada to Southern Nevada. A Nevada district court denied the SNWA authority to tap the northern counties' groundwater. The decision will be appealed.
At first glance, the pipeline project appears to reflect Las Vegas' seemingly insatiable desire for water to support rapid residential and commercial development. But the reality is a bit more complicated. While the idea of living in the middle of the desert seems audacious, the Las Vegas Valley has generally been a good steward of water resources. The density of residential development, for example, is quite high and cuts against common anti-sprawl arguments. The real trouble for Las Vegas is that it receives very little water from the Colorado River compared to neighboring states. When the Colorado River allocation agreement was initially struck, Nevada (and Las Vegas) were much smaller in population and weaker in political power. With the subsequent growth of Las Vegas, it becomes necessary to find a back-up plan to buttress the limited water resources from the Colorado.
Kiawah Island, Revetments, & Walls
A Kiawah Island developer who lost an initial request to build a revetment surrounding the pristine southern tip of the island (i.e., dunes), a decision now on appeal, has now received the go-ahead by state regulators to submerge a wall into the dunes to protect utilities and roads should tidal flooding occur. Click here and here to find out about more about the developer's plans. (Historically, this portion of the island has waxed and waned with changing tidal patterns and hurricanes, is used by sea turtles for nesting, and is otherwise considered a pristine maritime ecosystem--an area initial developers of the island avoided for these same reasons.) Readers may recall that another South Carolina island, the Isle of Palms, played a role in the famous Lucas decision which tinkered with the Supreme Court's regulatory takings test previously established in Penn Central. In Lucas, the developer ultimately won, after the Supreme Court ruled that the state's refusal to allow him to build a beach house denied him all reasonable use of the property. Similar arguments are being hinted at again. Opponents like the Coastal Conservation League will likely exploit the opportunity to argue public costs and benefits--factors the Lucas court all but ignored in its balancing. The reasonableness of the developer's investment-backed expectation may be another distinguishing factor.
Will Cook, Charleston School of Law
November 2, 2009
Reiss on Subsidizing Mortgages of Small Multifamily Buildings
David Reiss (Brooklyn) has posted Landlords of Last Resort: Should the Government Subsidize the Mortgages of Privately-Owned, Small Multifamily Buildings? The abstract:
The absence of stable financing options has long caused difficulties for owners of small multifamily buildings. Despite the ongoing maturation of a secondary mortgage market for small multifamily mortgages, this housing stock continues to shrink due to abandonment, demolition, foreclosure and other causes. As these buildings house many low-income households, some have suggested subsidizing the financing costs for the owners of these buildings. Any proposal to subsidize these landlords to meet affordable housing goals, however, should be predicated on determinations that (i) it is an efficient means to provide housing to the neediest tenants and (ii) the multifamily mortgage market is subject to failures that make such government intervention appropriate.
This article first describes what little is known about small multifamily properties and their owners. It then describes the lending environment for real estate entrepreneurs over the last hundred years. Finally, it evaluates the role the government should play in the small multifamily mortgage sector. The article concludes that subsidizing owners of small apartment building is an inefficient and unwarranted affordable housing policy and that more direct subsidies to low-income households, such as housing vouchers, are preferable.
Changes in Demographics Affect Housing Demand
Josh Martin, urban planning dynamo of South Carolina's Coastal Conservation League, circulated an informative article today: Arthur C. Nelson, "Demographic Outlook," Urban Land (Sept. 2009). The article predicts that the United States will experience an unprecedented shift in demographics between 2005 and 2030, one that will affect housing markets in significant ways, especially in the area of multifamily housing. Increasing numbers of seniors and single-person households without children will dominate. Minority household growth will nearly triple that of white, or non-Hispanic, households. In other words, households as we move toward 2030 will become older and more racially diverse. In fact, the age group 65+ will experience a 96.6% increase--45.5% of the overall share of change. At the same time, seniors share an affinity for the same type of housing as the second-largest share of the growth: the single-person household in the 25-35-year old range. What kind of housing do they favor? Smaller units in mutli-family arrangements. Demand for rental housing will also increase as lending markets return to more conventional methods of home financing, thereby all but shutting out sub-prime borrowers except in limited or highly restricted circumstances. Preference for rentals will also be strengthened by fear of recent events in the nation's real estate markets. Rising energy prices will bolster this preference. As a result, families will seek to congregate in denser, urban areas. Acting on these preferences in most places, however, is illegal because of zoning laws that do not allow them. Therefore, cities will need to rewrite exisiting codes to keep pace with consumer demand. If they fail to act, single-family detached homes will continue to be overbuilt relative to the emerging demand.
Will Cook, Charleston School of Law
Election Day: land use issues!
Most of the national attention for Election Day on Tuesday, Nov. 3d, is focused on the horse races in New Jersey, Virginia, and NY-23. But here in Houston and across Texas we have some land use issues both on the ballot and behind the politics.
First, the mayoral race. The generally popular Bill White is term-limited (and has his sights set on the 2010 Senate race). Vying to replace him as chief executive of the nation's fourth-most-populous city are four candidates: Peter Brown, Gene Locke, Roy Morales, and Annise Parker. Morales is a Republican, and the other three are Democrats, but Houston's charter prescribes nonpartisan elections. The three Democrats are leading in the polls, and there will probably be a runoff between the top two.
Land use regulation is a very big issue looming behind the scenes in this election. Houstonians are very much aware that we are the leading Unzoned City in America, and many are calling for stricter development rules, particularly because of a high-profile controversy over the proposed Ashby High Rise (more about Ashby later). The Houston Chronicle editorialized that Guiding Growth will be a Key Issue in the mayoral election, and it also reported recent poll results that Houston Voters want Tough Land Use Laws.
I have read and parsed various statements by the leaders Brown, Locke, and Parker, and this Houston Chronicle story analyzes their stances on land use, and I can't really tell much difference between the three candidates. None of the three is in favor of the "z-word," that is, (Euclidean) zoning, but all three seem to be vaguely in favor of more regulation (while maintaining that they are pro-development), and talk about good-sounding things like "protecting neighborhoods." Candidate Peter Brown is, as I noted the other day, an architect and planner, and is on record advocating form-based codes. But for the most part it's hard to see major differences between the leading candidates; I think they each can fairly be characterized as having a mild "more regulation" stance without a lot of specifics yet. The interesting part will be to watch what the new mayor actually does, or tries to do, to change land use law in the Unzoned City.
The second set of land use issues on the Nov. 3d ballot is in referenda on eleven proposed amendments to the Texas Constitution. Among them are Proposition 9, which will constitutionalize the Texas Open Beaches Act, and Proposition 11, which is an anti-Kelo prohibition on economic development takings. I'll have more on these after they pass; I don't think I'm going out on a limb in predicting that all eleven will pass by large margins.
Are there any land use issues in your state or local elections this year? We'd love to hear in the comments. As they say, vote early and vote often!
UPDATE: Results--Annise Parker 31%, Gene Locke 26%, Peter Brown 23%, and Roy Morales 20%. There will be a runoff between Parker and Locke on Dec. 12. Although it would have been interesting to have architect/planner/form-based code advocate Brown in the runoff, we will still have to see what Parker and Locke say about the hot issues of development and regulation in the Unzoned City
RLUIPA Working Papers...
Both Shelley Saxer (Pepperdine Law) and my colleague at Faulkner, Adam MacLeod, have recently posted working papers on RLUIPA.
Shelley, who participated in the real estate workshop at last summer's SEALS conference with me, discusses RLUIPA from a building and aesthetic land use code perspective while Adam's paper (scheduled to be published in the Urban Lawyer) offers this topic: "A Non-Fatal Collision: Interpreting RLUIPA Where Religious Land Uses and Community Interests Meet"
Both handle this act in original and interesting ways. I highly recommend checking them out.
--Chad Emerson, Faulkner U.
LaCroix on Urban Agriculture
Speaking of urban agrictulture, Catherine LaCroix (Case Western Reserve) has posted on SSRN
For many decades, the primary challenge of land use law has been how to promote and channel growth and development. Nobody wants stagnation; the cure is growth, and lately the cure has been “smart growth.” In the last several years, however, some cities have begun openly to address a previously unacknowledged truth: some cities will and do shrink. They lose population and have no foreseeable prospect of ever regaining it. The land use planning community has begun to grapple with the issue of the shrinking city, asking how we can achieve managed, “smart” shrinkage To some extent, the answer is to shift density and promote green uses of various kinds This brings us to the legal question Does an organized effort to help a city shrink pose any distinctive legal issues? What constraints might the law impose on a city’s goals of diminishing its infrastructure responsibilities, downzoning its land to less intensive uses, or taking other steps consistent with a goal of managed shrinkage This paper explores a few of those issues, using Cleveland, Ohio as an example. It considers legal challenges the shrinking city might face, particularly when downzoning urban property to promote urban agriculture and other green uses, focusing on the application of takings law It also briefly considers the fairness issues associated with downzoning and the limitations of the current legal structure for revitalizing Brownfields in a setting where traditional redevelopment is unlikely.
November 1, 2009
Urban Lawyer, Vol. 41 No. 3
The most recent issue of the Urban Lawyer (Vol. 41, No. 3) has been published. Looks like there are several interesting land use articles in the table of contents, including:
Regulatory Takings and Free Trade Agreements: Implications for Planners, MILDRED E. WARNER, p.427
Recent Developments in Regulatory Takings Jurisprudence, CHRISTOPHER M. WHITCOMB AND MARY LYNN HUETT
Recent Trend in Green Buildings Laws: Potential Preemption of Green Building and Whether Retrofitting Existing Buildings Will Reduce Greenhouse Gases and Save the Economy, ERIN BURG HUPP, p.489
What the Meaning of "May" May Be: Recent Developments in Judicial Review of Land Use Regulation of Cellular Telecommunications Facilities under the Telecommunications Act of 1996, ROBERT B. FOSTER, p.501
Recent Developments in Exactions and Impact Fees, W. ANDREW GOWDER, JR. AND BRYAN W. WENTER, p.513
2009 Ethical Considerations in Land Use, PATRICIA E. SALKIN, p.529
Recent Developments in Comprehensive Planning Law, EDWARD J. SULLIVAN, p.547
Recent Developments in Public Use and Pretext in Eminent Domain, ROBERT H. THOMAS, p.563
Institute for Justice report on eminent domain in New York & the Goldstein case
The Institute for Justice, the libertarian pro-property rights group that famously represented Susette Kelo, has issued a report called Building Empires, Destroying Homes: Eminent Domain Abuse in New York. From the intro:
New York is perhaps the worst state in the nation when it comes to eminent domain abuse—the forcible acquisition of private property by the government for private development. . . .
This report is designed to serve as a resource to anyone trying to understand the complex and byzantine laws that allow eminent domain abuse to happen and the issues surrounding the government’s power to take property. It presents both the law and the stories that make up New York’s reprehensible history of eminent domain abuse, but it also suggests solutions the courts and the Legislature can implement to ensure everyone keeps what is rightfully theirs to own.
The report comes out as the New York Court of Appeals is considering the high-profile case Goldstein v. New York State Urban Development Corporation (scroll down to docket number 178). Oral arguments were last month. This is the case about the use of eminent domain by the corporation for the 22-acre Atlantic Yards development in Brooklyn, which is proposed to have a variety of uses centered around a new arena for the New Jersey (for now) Nets basketball team, owned by project developer Bruce Ratner. Property owners are challenging the taking under the public use clause of the state constitution. As Professor Ilya Somin has noted, New York is one of only seven states that has not enacted any sort of post-Kelo reform (see his article The Limits of Backlash: Assessing the Political Response to Kelo). Prof. Somin expressed doubt at the Volokh Conspiracy about any chance that the Goldstein decision will result in any scaling back of economic development takings under state law.
The Schenectady Gazette has a front-page article on the report that unfortunately is behind a subscription wall (thanks to Patrick Festa for the pointer). The article quotes Albany Prof. Patricia Salkin, one of the leading experts on land use and state government law (as well as editor of Law of the Land), as being critical of the IJ report, and as also predicting that the Court will uphold the exercise of eminent domain in Atlantic Yards.
Salkin said that over time, the meaning of public use has expanded, and now, projects that are not owned by a public entity but have some sort of public purpose, such as generating tax revenue, removing blight and creating jobs, are valid uses of eminent domain law.
Sounds about right in light of Kelo. But there may be some other issues that will come out of the decision:
Salkin attended the oral arguments in the Goldstein case and said the judges indicated that the issue of whether eminent domain can be used for private projects has been settled. But other issues are likely to be explored, including the question of whether Atlantic Yards provides the proper amount of affordable housing, required because the project is in a designated renewal area.
Perhaps like Kelo itself, the Goldstein decision will not be earth-shattering doctrinally, but it is certainly bringing a lot of attention back to eminent domain.
Chad Emerson has posted a couple of times about parking requirements in land use regulations. Architect Roger K. Lewis takes on parking garage aesthetics in his Washington Post column yesterday called Where You Park Doesn't Have to be Scary.
Think of all the parking garages you have visited where lighting is dim, visibility is constrained, way-finding signage is obscure and orientation is elusive. No wonder garages can feel unsafe, threatening and even spooky.
Lewis calls parking garages "the Rodney Dangerfield of architecture" because they get no aesthetic respect. He points to a new exhibition at the National Building Museum called "House of Cars: Innovation and the Parking Garage," which runs through July 2010. According to Lewis:
But "House of Cars" demonstrates that parking garages do not have to be ugly or scary. Indeed, some architects and their clients have aspired to make attractive, artfully designed garages.
Publicly visible, multi-level garages, essentially stacks of horizontal or sloped concrete plates, entail three basic design issues: how to form the structural skeleton, how to clad the exterior and how to relate the garage to its context. At the National Building Museum, you will see how architects have dealt with these issues while you also learn about the 100-year evolution of parking garage architecture.
Sounds like a good reason to visit the National Building Museum.