Friday, December 4, 2009
Dahlia Lithwick, one of my favorite U.S. Supreme Court observers and probably one of the wittiest, dove into the debate this week over the merits of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection following oral arguments. Her article from Slate is entitled, "Spring Break, Scalia Style." Click here for a link to her post. Lithwick discusses first the blurry line between public and private, and how this line can be a dynamic one--"kind of like Kelo but without the poor people" (read: no blighted neighborhood). But unlike Kelo in that no one lost tangible property. In fact, as Justice Ginsburg pointed out: "[Property owners] have a wider beach that's theirs, so they have gained property." Nevertheless, the Stop the Beach plaintiffs argued that Florida's beach renourishment program harmed them: They lost the right to "touch the water." Lithwick points out, however, that the justices exhibited little patience in response to this argument. To be sure, whether Stop the Beach will change land use law remains unclear. Stop the Beach, however, will go down in history as the only case where the Court has debated hot dog stands, beach parties, and porta johns in a single argument, if at all. Take a look at Lithwick's article to find out why. Your takings hypotheticals will never be the same.
Will Cook, Charleston School of Law
For those of you who believe the courts are failing to provide any meaningful boundaries for eminent domain use in New York, check out this article on the New York Times website. This case is heavily influenced by, and yet seemingly contra to, the Atlantic Yards case and Kelo. The court found no public purpose in the use of eminent domain to take land for an expansion of Columbia University. We'll see what happens on appeal.
Jamie Baker Roskie
What does a complete land use and development implosion look like?
This story from the Guardian about Dubai's continued problems gives a good hint:
Creditors of Dubai World are expected to reject a standstill agreement proposed by the company, threatening to drag out negotiations over $26bn (£15bn) worth of the conglomerate's debt.
Just how ridiculous were these various default-inducing development plans in Dubai?
Check out the website for one of the main developers and just try to comprehend all of this being built in a desert whose population is less than 5 million. It really makes some of those crazy (and now essentially abandoned) California Inland Empire subdivisions look like nothing more than a paper cut when compared to the mortal wounds facing Dubai.
What's even worse for those intrepid souls who bought into Dubai real estate during the bubble is that they don't really have bankruptcy over there. Indeed, this story describes how, in addition to losing a ton of money on the post-bubble property, you can also find yourself in the equivalent of Debtors Prison in the Desert.
What a mess.
--Chad Emerson, Faulkner U.
I have to say, Jim Titus is on the ball and he does his homework. Here's his follow up e-mail to me about Stop the Beach:
The plaintiff also insists that the common law right to recovery was not just a right to fill back land lost to the sea but also included a right to excavate any avulsion on the King's land between the owner's land and the sea. That is totally at odds with early common law, whose focus was on preserving the King’s ownership of the King’s land, often along the English Channel where accretion often brought new land. The right to reclaim land that you lose to the sea is very different from the right to destroy the King’s land just so you can have waterfront property. Especially during a period of time when riparian lands were generally not used for shorefront dependent uses, but the King might be able to use the new land for a fortification.
But the most clever part of his argument was his explanation for why the loss of the accretionary right—if a taking—would be a judicial rather than a legislative taking. The plaintiff argues that the Act’s savings clause, which authorizes compensation through eminent domain if the requirements of the Act would be a taking, implies that the taking did not occur when the statute was passed 50 years ago. It didn’t occur until the Court ruled that there was no taking and denied just compensation—at which point it was a judicial taking because the court failed to follow the law. Under that reasoning, every legislative takings claim lost in state court, even over very old legislation, could be a judicial taking if the statute had a provision for just compensation.
Now, if I just understood sea level rise science as well as Jim understands the common law, I'd really be in business!
Jamie Baker Roskie
Hard to believe, but I'm watching the snow come down in Houston. It's official:
Houston this morning broke a record with the earliest snowfall ever recorded in the city's history.
Texas is a big state (just ask a Texan) and snow is fairly common in some areas--the northernmost part of the state is a stone's throw (over the Oklahoma panhandle) from Colorado. But such weather is pretty rare in Houston. My law school has closed for the day and rescheduled tonight's exams.
I grew up in upstate New York, where the average January temperature is 22 F (compared to Houston's 55 F); average winter snowfall was 64" (compared to Houston's < 0.05"). Tennessee, where I lived for about eight years as an adult, is just far enough north to get some decent snowstorms each winter, but overall it has a much warmer, and shorter, winter. Yet it seemed that in Tennessee the authorities were constantly cancelling school and shutting the city down. Often the schools had to extend their year to make up for all of the snow days. In New York we hardly ever lost a day of school due to snow; perhaps 0-2 per year. Even a 12-inch snowfall was not a problem, while in Tennessee they would preemptively close for a forecast of snow.
Fellow northern transplants and I would snicker at all this. You call this a snowstorm? I chalked up the different approaches to the hardiness of our yankee constitutions. But eventually I think I figured out what might be the biggest factor in the different regional reactions, and it's a land use & local government issue. Albany County's snow removal budget for supplies alone (salt, fuel) is $1,217,500. This doesn't include the operating costs for personnel, nor the capital outlays for the equipment; a new snow plow can cost a city around $200,000. Chicago's total snow removal budget is $17 million.
So while these types of expenditures are necessary in northern cities, it wouldn't make sense in warmer climes to purchase and maintain the equipment, supplies, and personnel necessary for snow removal capability. In Houston a freak storm like today's doesn't happen often enough to remotely justify the expense. It becomes a more difficult question for places in the latitudinal middle, like Tennessee and Kentucky. One could measure the economic impact of lost school and work days and business in the area, and compare it to the costs of snow removal. But even that would still need to make some predictive assumptions based on variance from year to year. (Besides, why invest in a snow plow when Georgia will soon be underwater due to global warming?)
Assuming rational actors, one would think we could draw lines between the places where it is more efficient as a matter of municipal policy to do snow removal, and those where it is more efficient to simply ride out the storms as they come. Obviously there are a lot of other factors for planners in making this decision, including geography, the urban/suburban/rural character of the place, and other unique factors. Plus there are the politics of snow removal (a blizzard is said to have altered the outcome of Chicago's mayoral primary in 1979).
But obviously it would never make sense on the Gulf Coast, so we'll just hunker down as we watch the freak snowfall today (my three-year-old has no idea what this stuff is). But don't feel bad for me-- it will be back up to 74 F by Tuesday.
When someone says "Chinese" as an adjective I typically think of food or maybe checkers.
Rarely though do I think of synthetic building material.
That should probably change now that Congress and some of the nation's leading plaintiff law firms are getting more involved in the growing Chinese drywall controversy. Here are some details from the Housing Wire blog:
Congress is taking action to help homeowners affected by defective drywall manufactured in China. The drywall was used to build hundreds of homes during the housing boom and is now known to cause serious structural defects, according to the results of a government task force investigation. ...The resolution cites that the noxious gases released from the drywall is forcing borrowers out of their homes and into temporary housing at great personal expense and calls on banks and mortgage servicers to help borrowers affected by the drywall.
Apparently, sitting here in Montgomery, Alabama, I'm near Ground Zero of this curious by-product of the housing boom. As far as I know, our house (built five years ago here) isn't chock full of this type of drywall (I know my builder well and he "really, really" promises he didn't use the stuff).
But, can you imagine the administrative and logistical nightmare that this could present if it turns out to be a widespread problem? Drywall is not something easily removed. We're talking about gutting thousands and thousands of homes. This means a great deal of electric, plumbing, and other modifications.
Those are the exact things that city building departments typically focus on. With many cities laying off building inspectors, I suppose the silver lining is that Chinese drywall could be a huge jobs stimulus for that market segment (yes, that is partially a tongue in cheek observation).
Anyhow, I would definitely follow these Congressional actions closely if you research/write/represent interests in the life/safety side of the land use world.
--Chad Emerson, Faulkner U.
Thursday, December 3, 2009
As promised yesterday, today I'm blogging about sea level rise research and modeling being done here at University of Georgia's River Basin Center. (I've been privileged to work and be housed with the RBC for the past several years, and RBC co-director Laurie Fowler founded the Land Use Clinic).
Dean Hardy of the RBC staff has modeled the effect of one meter of sea rise on the Georgia coast. One meter is a forecast commonly accepted by scientists. A visit to the RBC website gives you a very interesting - or scary, if you're a coastal property owner, government official, or planner - view of the future. I visit the Georgia coast fairly often - particularly Savannah, Tybee Island, and Jekyll Island. It's very compelling to see my favorite beaches and neighborhoods inundated by seawater in the aerial flyovers.
Dean and his partners are taking this data to local government officials in Glynn County, Georgia next week. Those officials apparently hope to use this data in their future planning. I'm certainly glad I'm not in their shoes - although they might be calling the clinic for help soon, so I should be mentally prepared.
Jamie Baker Roskie
Wednesday, December 2, 2009
So the oral arguments in perhaps the biggest property/land use case since Kelo were today. Check out Will Cook's earlier post for some of the news articles about the case.
Ben Barros has a great post on the Property Prof Blog with some extensive early analysis. I don't have much else to add at this point, so just go over there and check it out: Of Hotdog Stands and Beach Parties.
Also, Lyle Denniston at SCOTUSblog has a good analysis: An elusive constitutional issue.
The transcripts of today's oral argument are available at supremecourtus.gov.
Certainly there will be more to come!
The co-editors of this blog recently got an interesting e-mail from Jim Titus, an eminent EPA scientist who has been researching sea level rise for many years. He was co-author of one of the first EPA-funded studies on sea level rise in the mid-80s. He wrote to tell us about an important new study:
The Texas case ultimately gets at the question about whether the legislature can adjust property law to reflect the geological reality of changing shores without causing a taking for those immediately affected, and for those who will ever be affected. The Florida case looks like a judicial takings case but it too really gets at whether a confusing doctrine of avulsion can be adjusted to reflect the reality of shoreline movement and government response without causing a taking. Ultimately, the question about whether all riparian owners benefit from beach nourishment depends on whether they had a right to build a seawall or would have had to lose their homes without that beach nourishment. That is, cases like Stop the Beach Nourishment will ultimately require resolution of cases like Severance. But ultimately, the relevance depends on where we will hold back the sea and where we will retreat.
Our new study gets into that question. The sea level rise planning study, recently published in the peer-review journal Environmental Research Letters., was based on a $2 million research project by USEPA, conducted in collabortation with 130 local governments. Actually, the regional planning councils did the work in FL, GA, and PA; elsewhere we obtained our data and vetted the analysis through the local governments. The media coverage was mostly in the southeast, especially North Carolina, but the general story is important to all who want to think about either (a) how lands use planning will deal with sea level rise or (b) where all these coastal takings cases ultimately go.
The study does three things worth knowing about. First, we create maps about where people would hold back the sea if current policies continue, based on the data provided by 130 local govenments, refined through site-specific corrections by local planers. The idea is to motivate dialogue on where we **should** protect and where we **should** allow wetlands to migrate inland. So now, local governments that want to start planning for sea level rise have a strawman baseline analysis. This is needed because one can not really address rising sea level in a local plan without making an assumption about which land will be yielded to the sea, which land will be elevated, and which land will be protected by a structure.
With all these GIS maps, we then analyze how much land is likely to be developed and protected from the rising sea (possibly exposing people to a New Orleans situation) and how much land is available for the inland migration of wetlands. We estimate that 60% of low land will be developed, with 10% set aside for conservation and the other 30% undeveloped at first--but shore protection would be possible even here. Opportunities for land-use planning are greatest between Delaware Bay and Georgia; elsewhere emergency and infrastructure planning are more urgent. (My personal view is that, as legislatures and others think about possible clarification and alignment of property rights to reflect rising sea level, the areas shown in blue should all have something like the Texas rolling easement as a background principal, the areas in red are candidates for purchase of rolling easements as an interest in land--possibly by eminent domain, exactions, or conserancies; and the areas in brown should have policies more protective or property rights along estuaries provided that public access is preserved.)
Finally, we conclude that the resulting level of shore protection has a cumulative impact which violates the Clean Water Act (legal reasoning explained in the article).
Our thanks to Jim for letting us know about this study. It parallels some work being done by the Ecology school here at UGA. I'll blog about that soon.
Jamie Baker Roskie
UPDATE: Jim asked that I be sure to add the links to the sea level rise planning maps and the state-specific summaries. (On the latter page, for extra fun, you can download a Christmas global warming song!) Also, Jim attended oral arguments for Stop the Beach, which I will post in a separate blog entry.
Howard J. Bashman, editor of How Appealing, an informative blog devoted to appellate litigation, published this collection of links this morning to the popular press about an upcoming regulatory takings case--the first of the Roberts Court. This has special relevance to those of us in Charleston, SC, which takings experts will recall is the site of the famous Lucas lots on the Isle of Palms. Click here to link to How Appealing or view the links compiled there as set forth below:
"Supreme Court to hear Florida beach property rights dispute; Homeowners with private beachfronts on the Gulf Coast have sued over a government program that added sand to eroded beaches and made the new strip of land public property": David G. Savage has this article today in The Los Angeles Times.
Warren Richey of The Christian Science Monitor has an article headlined "Supreme Court case: Florida v. beach property owners; Beach property owners in Florida went to court after the state government added sand to the beach in front of their homes, citing erosion, and designated the new stretch public land; The Supreme Court hears arguments Wednesday."
Yesterday's edition of The Orlando Sentinel reported that "Beach replenishment trampled our rights, property owners claim; Supreme Court hears Panhandle case -- should they be compensated?"
Mark Sherman of The Associated Press has a report headlined "Beachfront property dispute at Supreme Court."
The Destin Log has a report headlined "Beach restoration in the balance: Supreme Court justices wade into local quagmire."
The Wall Street Journal contains an editorial entitled "Property Rights at the Water's Edge: The Supreme Court gets a seaside view of the Fifth Amendment."
And The St. Petersburg Times contains an editorial entitled "Florida should win battle over beaches."
Special thanks to How Appealing for its compililation of links on this timely issue.
Will Cook, Charleston School of Law
City Journal has posted Michael Knox Beran's Can the Polis Live Again? The modern world has withered public space and its virtues. From the intro:
In 1958, Hannah Arendt published The Human Condition, her book—part panegyric, part lamentation—on what she called “public space.” What she meant by public space wasn’t just the buildings and gathering places that in a good town square or market piazza encourage people to come together. It wasn’t even civic art viewed more broadly, the paintings and poetry Arendt attributed to homo faber, the fabricating soul who translates “intangible” civic ideals into “tangible” civic art. Public space, for Arendt, was also a metaphysical arena in which people realized their individual potential.
Naturally, we're more interested in the buildings and the gathering places! Most of the article is about Arendt's writing and philosophy rather than land use law per se, but of course the issue of public space--physical and social--is important to land use theory and practice. See (or "listen to"--is that in the bluebook?), e.g., the latest Smart City podcast on Lurie Gardens as public space in Chicago. Also, the notion that public space may contribute to individual realization of potential sounds to me to have something in common with the property-law-for-human-flourishing argument (which in turn draws ultimately from Aristotelian analysis) articulated by Gregory Alexander in The Social-Obligation Norm in American Property Law.
Beran's article concludes with a comparison of Arendt's focus on politics to New Urbanism:
A new generation of civic artists is seeking to revive the old public spaces. “New Urbanist” architects, among them Léon Krier, Andrés Duany, and Elizabeth Plater-Zyberk, want to restore the town square to its old pride of public place. Their effort is noble, but Arendt showed just how fierce the opposition is.
Anthony Pennington-Cross (Marquette University - Dept. of Finance) has posted The Duration of Foreclosures in the Subprime Mortgage Market: A Competing Risks Model with Mixing, forthcoming in the Journal of Real Estate Finance and Economics, Vol. 40, No. 2, 2010. The abstract:
This paper examines what happens to mortgages in the subprime mortgage market once foreclosure proceeding are initiated. A multinominial logit model that allows for the interdependence of the possible outcomes or risks (cure, partial cure, paid off, and real estate owned) through the correlation of associated unobserved heterogeneities is estimated. The results show that the duration of foreclosures is impacted by many factors including contemporaneous housing market conditions, the prior performance of the loan (prior delinquency), ad the state-level legal environment.
From the student organizing committee of UGA's annual WIPI conference. Note below that there will be a panel on environmental justice issues.
Save the Date! UGA Law’s Working in the Public Interest (“WIPI”) would like to invite you to attend the Fifth Annual "Working in the Public Interest: Advancing Social Justice" Conference on February 26-27, 2010.
The conference is not simply for those pursuing a career in public interest law. Whether that is your intended career path, or you plan on working in the private sector or in a non-traditional legal job—we welcome you! Not only is this a free opportunity for you to attend and participate in candid, progressive discussions of human rights issues, this is also a perfect networking opportunity—to meet fellow attorneys, professionals, and law students.
This two day event features panels and roundtable discussions with speakers drawn from all parts of the country. The conference will be held at the School of Law, and we will be offering CLE credits for attending attorneys. We can also arrange free housing for student attendees who would like to stay with other students here in Athens.
WIPI 2010 Panels:
•Prison Reform: Disentanglement from the Concrete Jungle
Issues Facing Former Inmates Struggling to Reintegrate into Society
•Environmental Justice: Not In My Backyard
The Disproportionate Impact of Pollution on Minority and Impoverished Communities
•Advocacy & Crossover Kids: When a Child Never Had a Chance
The Pipeline Carrying Children From Foster Care to Juvenile Delinquency
•LGBT: Don't Be a Hater!
When Hate Crimes Are Directed At Members of the LGBT Community
•Immigration: The Selective Melting Pot
Balancing the Competing Interests of our Nation and our Immigrants
WIPI 2010 Lunch Roundtables:
•Public Interest versus Private Practice: Why it Doesn’t Have to Be a Choice
•Education Advocacy in Public Interest: Lessons to be Learned
•Media Representation of the Public Interest: Is Seeing Really Believing?
*Coming soon to our website: keynote speaker information, lunch roundtable information, panel information, panelist information, photos from past conferences, electronic registration, and more! Please visit www.law.uga.edu/wipi/index.html.
Registration is FREE for all students! Registration (electronic) will open next month. If you have questions or concerns, please email us at: firstname.lastname@example.org. You may also find us on Facebook at http://www.facebook.com/pages/Working-In-the-Public-Interest-Law-Conference/33102024222.
If you’d like to receive posters/flyers to distribute, or would like to help us spread the word, please email us at email@example.com
Please feel free to distribute this email and its contents to other students, professors, or practitioners who may be interested in attending the conference. We look forward to seeing you there!
2009-2010 WIPI Executive Board
The UGA WIPI board always does a great job organizing this conference, and it's a good chance for public interest-minded students and practitioners to come together. I hope you all will share this information with your students.
Jamie Baker Roskie
Tuesday, December 1, 2009
During my recent visit to Colorado I was fascinated by the discussion of "pops and scrapes." This is Boulder parlance for developers who buy up small post-war houses and either add on by popping up the roofline, or scrape the house off the lot and build something much larger. This photo, taken in a Denver neighborhood with my husband's cell phone camera, gives an idea of this phenomenon.
There has been sharp debate in Boulder (and in many other communities around the country, including Atlanta) about limiting the size and scale of these additions or rebuilds. Folks in the smaller homes around the McMansion-style rebuilds resent the shadow cast by these larger homes, and want something more compatible with existing homes.
On the other hand, one Denver realtor we spoke with said that the sagging economy has largely put an end to this practice, because developers just can't flip these larger houses the way they used to. In the meantime, though, many of these homes linger on the market.
Jamie Baker Roskie
We've heard a great deal about the ongoing Dubai default drama from a horde of different economists and other financial types. Recently, though, KCRW in Los Angeles posted a podcast where it discusses the topic with two prominent architects.
You can download the podcast here (the Dubai part begins at the :33 minute mark).
The interviews provide a good background of the design and development of Dubai. One of the architects describe the theory behind Dubai as "cut and paste urbanism" as well as "ponzi scheme urbanism".
A very interesting listen from a more land planning perspective...
--Chad Emerson, Faulkner U.
Monday, November 30, 2009
Patricia Salkin (Albany) has posted Sustainability and Land Use Planning: Greening State and Local Land Use Plans and Regulations to Address Climate Change Challenges and Preserve Resources for Future Generations, forthcoming in the William & Mary Environmental Law and Policy Review, Vol. 34, 2009. The abstract:
Although a coordinated national policy on climate change should be developed, initiatives at the local government level through the land use planning and regulatory control processes have tremendous potential to dramatically contribute to the reduction of green house gas emissions, leading to a reduction in the carbon footprint and ultimately to a more sustainable environment. Part I of this article discusses opportunities for using the comprehensive land use planning process to address sustainability and provides examples of how this is being accomplished across the country. Part II mentions the growing number of state and local climate action plans (and cross-references a forthcoming article from the Houston Environmental & Energy Law and Policy Journal that details current developments in this area). Part III focuses on addressing emissions through the use of environmental impact reviews, and Part IV highlights how sustainability is being addressed through zoning and other land use regulations. Part V examines how green building standards are addressing sustainability, and Part IV illustrates how stormwater and landscaping initiatives are also being employed to accomplish these goals.
James Salzman (Duke) and J.B. Ruhl (Florida State) have posted Who's Number One?, forthcoming in Environmental Forum, Vol. 26, No. 6, p. 36, November-December 2009. The abstract:
What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserv for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserv and members of the ABA's Section on Environment, Energy and Resources. We enjoyed a high level of participation, with over 440 responses from across the nation, from academics and practitioners alike. Among the most interesting findings are: (1) not surprisingly, Chevron remains firmly in the Top Three cases; (2) more surprisingly, the relatively young Massachusetts v. EPA has vaulted to the top as the most significant case in the field; (3) most surprisingly, Rapanos scored in the Top Three in most categories of respondents and in the top four for almost all the categories; (4) TVA v. Hill , while still a favorite among academics, has faded from prominence among practitioners; and (5) some of the classic environmental law cases that scored high on the 2001 survey, such as Overton Park and Ethyl Corp., have fallen off the cliff. Our article discusses the findings in more detail and our musing explanations for the surprise results.