Saturday, December 19, 2009


Are HOV lanes a good idea?  They are controversial, to be sure.  Some think that they are essential to disincentivizing traffic and rewarding carpooling.  Others think that they are inefficient or infringe too much on liberty.  But for those commuters who live in areas with HOV lanes, the practical question is how to adapt. reports on the emergence of one response to HOV lanes: Slugging.

HOUSTON – Would you jump into the car of a stranger? Hundreds of Houstonians do it every morning on the way to work to save time and money.

The phenomenon called "slugging" developed in the northeast and has caught on in Houston over the last few years.

The "sluggers" park at a Metro Park and Ride lot and form a line to get into cars with drivers who are looking for a passenger so they can legally take the HOV.

Slugging seems to have originated, or has been most successful in, the DC area.  I think it would be creepy to rely on a commute in a stranger's car (plus, the story doesn't say how they get home).  But on the other hand, I kind of like the free market ordering response to regulatory restrictions--when the government creates an HOV lane, the commuters establish a new informal but effective institution, the slugging line. 

Matt Festa

December 19, 2009 in Houston, Sprawl, Suburbs, Texas, Transportation | Permalink | Comments (5) | TrackBack (0)

Friday, December 18, 2009

Governments must legislate to ‘green’ communities, says law expert

A news release from John Nolon's publisher:

To win the battle against climate change, national and local governments must work together to impose far-reaching ‘sustainable development’ laws on local communities.
The call for sweeping changes to land use and planning legislation comes from John R. Nolon, Professor of Law at Pace University, writing in the Planning & Environmental Law journal.

He writes: “Combating climate change requires that the full legal power, technical capacity, financial resources and historical strengths of all levels of government be integrated into a single system of management, mitigation and sustainable development.”
He argues that government can only demand low-mileage lifestyles and energy-efficient buildings by creating new legislation that is enforceable through the courts and a strict system of penalties.
Commenting on his article ‘Climate Change and Sustainable Development: The Quest for Green Communities’, Professor Nolon said: “Buildings and privately owned vehicles generate almost half of all CO2 emissions in developed countries, so our whole infrastructure needs to be more energy-efficient. The environmental planning framework we currently have in the United States and elsewhere will not cut CO2 emissions quickly enough. We need to encourage local leaders and citizens to accept more compact, mixed use neighborhoods, public transport, wind turbines, solar panels, district energy systems and all else it takes to make communities green.”
Professor Nolon’s articles, published in Volume 61, issues 10 and 11 of Planning & Environmental Law, are available to download for free from the ‘Online Contents’ link on the journal homepage:  You can also link to them directly at: and

Thanks to Patricia Salkin for the heads' up about this.

Jamie Baker Roskie

December 18, 2009 in Clean Energy, Community Design, Density, Development, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 17, 2009

North Charleston Partnership Wins EPA’s National Environmental Justice Achievement Award

A news release from EPA:

During a ceremony today in Charleston, S.C., the U.S. Environmental Protection Agency (EPA) announced the partnership between the Mitigation Agreement Commission and the Lowcountry Alliance for Model Communities in North Charleston is among five winners of national Environmental Justice Achievement Awards.

 "EPA is pleased to recognize this partnership for its exemplary work with the city of North Charleston and the South Carolina Ports Authority to foster environmental protection and economic revitalization in distressed neighborhoods," said EPA Acting Deputy Regional Administrator Beverly Banister. “Model efforts like this show how a collaborative, problem-solving approach can result in healthier and more livable communities.”

The awards recognize partnerships for their distinguished accomplishments in addressing environmental justice issues, emphasizing collaborative work in communities disproportionately exposed to environmental and human health risks. Winning applications were reviewed and selected based on the six criteria, including innovation, public involvement and demonstrated results, by an independent, non-EPA review panel.

The partnership between the Mitigation Agreement Commission and the Lowcountry Alliance for Model Communities created a $4.08 million community plan for the city of North Charleston that will fund community, neighborhood and economic development projects in seven of the city’s most economically distressed neighborhoods. The partnership encourages open and meaningful dialogue between the neighborhoods it represents and elected officials, public agencies, planners and private developers to determine how best to minimize environmental and community impacts associated with the construction and operation of a new port. As a result of the partnership’s work, the Charleston port expansion project is the first to include both community and environmental programming as part of the formal mitigation plan. The partnership represents 14 organizations, including:

     * Berkeley - Charleston – Dorchester Council of Governments
    * Charleston Metro Chamber of Commerce
    * City of North Charleston
    * Clemson University Restoration Institute
    * Department of Planning and Landscape Architecture, Clemson University
    * Institute for Families in Society, University of South Carolina
    * Interdenominational Ministerial Alliance
    * Lowcountry Alliance for Model Communities
    * North Charleston City Council, District 10
    * North Charleston Housing Authority
    * South Carolina Department of Health and Environmental Control
    * South Carolina Department of Transportation
    * South Carolina Employment Commission
    * South Carolina State Ports Authority

The following partnerships also received awards:

    * Coalition to Prevent Lead Poisoning for outstanding leadership in community-based efforts to prevent childhood lead poisoning in the City of Rochester, New York.
    * Fish Contamination Education Collaborative for outstanding efforts to reduce the consumption of contaminated fish by the local Vietnamese, Chinese, and angler populations near the Palos Verdes Shelf Superfund site, Los Angeles, California.
    * ReGenesis Project for outstanding leadership and efforts to address environmental protection and community revitalization issues in the Arkwright community of Spartanburg, South Carolina.
    * The Clean Trucks Program for outstanding efforts to significantly reduce air pollution from big truck rigs around Long Beach and Los Angeles, California port facilities.

Information on the EJ Achievement Award Program, including more details about this year's recipients:

Jamie Baker Roskie

December 17, 2009 in Environmental Justice | Permalink | Comments (0) | TrackBack (0)

Adams on Homeownership & the American Dream

Kristen Adams (Stetson) has posted Homeownership: American Dream or Illusion of Empowerment?, published recently in the South Carolina Law Review, Vol. 60, p. 573.  The abstract:

In this Article, I endeavor to show that because Americans value homeownership so much — in fact, more than we should — we have placed ourselves in an untenable position as a country and now find ourselves in the midst of a well-documented housing crisis. In addition, we have used the primacy of homeownership as an excuse not to fulfill our country’s commitment to provide housing assistance to those persons who need it most. We have done this in part by undervaluing quality, affordable rental property (and quality renters) just as we have overvalued homeownership (and homeowners). Some have used the word “myth” in talking about the American view of homeownership; however, the word I prefer is “illusion,” which I intend to be less pejorative while still acknowledging that homeownership does not always deliver the benefits it promises, particularly for lower income homeowners. This Article is not particularly concerned with the question of who is to blame for the current housing crisis, because I believe fault in this context is too complicated to be laid at the feet of just one party or another. Part II of this Article examines the median American household, mortgage, and house, concluding that many Americans cannot afford the homes they have purchased. Next, Part III addresses the question of why our country overvalues homeownership to such an extent that it now finds itself in this position. In doing so, Part III examines the many benefits that homeownership supposedly provides to both individuals and society. Part IV contrasts society’s customary treatment of homeownership as a virtue with its stigmatization of renters, concluding that the latter is unfounded. Part IV also explores how the very interests that have promoted homeownership have also benefited most from its growth. Part V considers several factors that contributed to the real estate boom that culminated in the mid-2000s, including homeowners’ treatment of mortgage debt as wealth, financing options such as no-down-payment and interest-only loans, increased utilization of home equity loans, and certain features of subprime lending. Part VI concludes by suggesting that universal homeownership does not provide the benefits Americans have come to expect from it and proposing four steps policymakers should follow in creating healthier, more sustainable housing policy.

Matt Festa

December 17, 2009 in Housing, Mortgage Crisis, Scholarship | Permalink | Comments (0) | TrackBack (0)

The I.M.P.A.C.T. of E.I.R.s...

I was doing some research on a local smart growth community that has found its plans somewhat delayed because of the Army Corps of Engineers amazingly long (and some might argue bureaucratically-wasteful) environmental impact reporting process.

While doing so, I came across a couple of recent news articles on the EIR topic.  First, this one where smart growth proponents are challenging an EIR:

The project is also facing some opposition. South County Citizens for Smart Growth has filed a lawsuit contesting the EIR, which the group says is inadequate. Spokeswoman Margaret Joehnck, who lives near Lake of the Pines, said the group was reactivated about two-and-a-half years ago specifically to challenge Higgins Marketplace. Joehnck said she wasn’t very surprised the development received county approval.

“There’s a real bias toward trying to have development, whether it is wanted or not,” she said. “I think that’s what we’re seeing.” Ideally, Joehnck would have liked to see the project turned down. “We’d prefer not to have it all,” she said. “Whether this can stop it is the question. The lawsuit is about the inadequacy of the EIR, so they could at some point come back and make changes.”

Meanwhile, this article discusses a smart growth community that had to revise its own EIR to proceed forward:

The development's second phase - The Village - is planned for 111 acres within the master-planned community near Marina del Rey, adding 2,600 more homes and new shops, offices and community uses. Construction on the project was halted in 2007 when an appellate court ruled that The Village's environmental impact report was flawed.

The decision forced Playa Vista to revise its EIR and seek various land-use amendments. At least one of the plaintiffs in the case said he still opposes the project as planned and is pursuing another lawsuit.

Both lead to an interesting question: is an EIR a smart growth-friendly or not friendly regulatory tool?

While EIRs, at least in concept, are designed to mitigate negative environmental impacts, I've found them in several cases to actually hinder dense and compact development.  Has anyone else dealt with this issue?

--Chad Emerson, Faulkner U.

December 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 16, 2009

Blast from the Past

I have a Google alert set for "Roskie."  Like many people, I like to know when my name appears on the internet.  Also, Roskie is an unusual name, so I like to know about other Roskies around the world. 

The other day something really interesting came through as an alert, something that's relevant to the content of this blog.  It was the minutes from the City of Juneau Planning and Zoning Commission for July 27, 1970.  The hearing was for a conditional use permit for a 30 unit townhouse development.  Not unusually, the residents of a nearby single-family subdivision, named Totem Park, were opposed to the development.  The argument proceeded in an entirely typical fashion.  The residents of the existing subdivision felt the land should be a park, and were trying to get the city to acquire the property.  Also, the developer planned to leave only a 30 foot buffer on the property, and the nearby residents felt that was too small.  The minutes go along in this vein for awhile, until in paragraph 13 there is testimony by my grandfather, George Roskie.  My grandparents owned a home in Totem Park.  He testified that the trees on the contested property provided cover from heavy storms, and that if the trees were cut from the center of the property that protection could be lost.  He also said that the compaction and filling caused by the construction could be detrimental to the trees.  (Anyone who has dealt with local tree ordinances will recognize this issue.)  There is then a rather technical exchange between one of the zoning commissioners and my grandfather about how many trees might be cut before damage would occur, and whether a playground would be appropriate on the site.  The exchange is a bit puzzling, unless you know that my grandfather was a forest supervisor for the US Forest Service at the time (and thus stationed in Juneau).  My grandfather was career Forest Service and he and his family lived all over the west, including Alaska.  After he retired in Great Falls, Montana, he became a real estate agent and served for several years in the Montana State Senate, where he specialized in natural resource issues.

My grandfather died during my first year of law school, so these little glimpses of his history are always precious to me.  We didn't see eye-to-eye on environmental issues when he was alive, so it's interesting to note similarities in our career interests.

By the way, the vote on the conditional use permit was delayed to the August meeting.  I'm not sure why these minutes have appeared on the internet now - perhaps Juneau has begun archiving their records on-line.  If I find the time I might follow up on this story to see what ultimately happened to the property.

Jamie Baker Roskie

December 16, 2009 in Development, Local Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 15, 2009

Lavine on Urban Renewal & Berman

Amy Lavine (Albany) has posted Urban Renewal and the Story of Berman v. Parker.  The abstract:  

The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal.

This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.

This looks really interesting, and if you download the paper you will see that it is chock full of maps, diagrams, and photos, which really enhances a land use project like this. 

Matt Festa

December 15, 2009 in Caselaw, Community Economic Development, Eminent Domain, Redevelopment, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Florida Land Use Lawsuit Moves Forward...

In several recent conversations, I've discussed with other colleagues how the current economic crisis has, among other things, changed the balance of power among developers and municipalities.  It used to be that, if City X did not accede to a developer's demands, then a neighboring or nearby jurisdiction likely would.

These days, however, most jurisdictions have very little left in the coffers to provide developer incentives.  Meaning that, developers are more likely to be stuck with the jurisdiction which their internal demographic research shows has the most viable demand.

(Note:  in the past, developers could sometimes justify locating a project in a somewhat less desirable demographic area if the incentives offered by that jurisdiction leveled the financial cost/risk playing field to a large degree).

The upside in this shift in power is that municipalities, if they are going to make politically tough land use decisions, probably have the best political environment in front of them in a long time.  After all, developer threats of moving or not building a project ring somewhat hollow when they aren't proposing one in the first place.

Which leads to this interesting lawsuit in Florida related to the new state law from earlier this year that significantly modifies Florida's regional development requirements:

Senate Bill 360 – known as the Community Renewal Act – went into effect in July. It ends a 37-year-old regional planning process for major projects known as a development of regional impact.

It also removes standing state requirements that developers help pay to upgrade roads, and requires that local governments conduct mobility fee studies that look at mass-transit solutions. It also extends the shelf life of a building permit for two years. The idea behind relaxing development regulations is to encourage more development in urban cores, thus stimulating the economy. But, critics say it could result in a development free-for-all and stick local taxpayers with the bill for road improvements once paid for by developers.

The lawsuit, filed by a host of municipalities, seeks to overturn the new law as unconstitutional along both substantive and procedural lines. The cities are essentially arguing that the state is imposing unfunded land use requirements on them--at a time when revenue is low but they actually have more leverage over developers than before.

If that lawsuit alone weren't interesting enough, the effect it may have on an upcoming 2010 Florida ballot initiative adds to the intrigue:

In an unintended consequence, the flap over the Community Renewal Act could bolster support for a separate ballot push to return authority over local comprehensive plans to the people. The Florida Hometown Democracy constitutional amendment, which will appear on the November 2010 ballot, seeks to require all changes to local comprehensive land use plans be approved through voter referendum.

“People are beginning to realize that our political leadership really doesn’t have the stomach for growth management, and that is the way it has always been in Florida,” said Lesley Blackner, a West Palm Beach lawyer and key organizer of Hometown Democracy. She said local governments too frequently amend comprehensive plans to accommodate specific developments, which defeats prudent long-term planning.

The growth watchdog group 1000 Friends of Florida had originally come out against Hometown Democracy, but its board may reconsider, due in part to dismay over the Community Renewal Act, President Charles Pattison said. He said the Community Renewal Act’s intent to push development to urban cores by making it easier and less costly to build there was good, but the Legislature went too far, removing oversight for projects in rural areas near urban area such as on farmland in western Palm Beach County.

--Chad Emerson, Faulkner U.

December 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, December 14, 2009

The ACE Basin and Conservation Easements

Refuge Headquarters

The ACE Basin of the South Carolina Lowcountry--a land area surrounded by the Ashepoo, Combahee, and Edisto Rivers--is one of the largest and best examples of the power of conservation easements.  Established in an area that once boasted wealthy rice plantations that turned into some of the nation's most favored sites for the winter sporting life, the ACE Basin as a land use initiative celebrated its twentieth birthday today.  Read more about this topic in an article by Bo Peterson, "ACE Basin at 20:  A Public-Private Patchwork of Preserved Lands is Facing New Era of Threats," Post & Courier (Dec. 14, 2009). 

Although most conservation easements in this part of the world have not faced litigation threats, this risk may increase as future owners find themselves subject to the easements and seek to challenge "dead hand" control.  Although the original grantors of the easements felt tied to the land and wanted to protect it (a great expression of personhood theory for 1L property profs), the non-profits that hold the easements today have limited funds.  Their ability to defend against challenges by future generations who may or may not share this attachment will depend on their resources, management decisions, and the willingness of courts to favor original intent and support conservation as a type of productive land use.

Photo notes:  The Grove Plantation House, circa 1828, is one of only three antebellum houses in the ACE Basin to survive the Civil War.  Former owners placed it on the National Register of Historic Places to help ensure its survival for future generations.  It now houses the Ernest F. Hollings ACE Basin National Wildlife Refuge.  Click here for more information about the house and here for a link to the Refuge's official brochure.

Will Cook, Charleston School of Law

December 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Riverkeeper, Seoul Style

President Lee Myung-bak of South Korea has launched an ambitious project to "remake" the country's four longest rivers, after achieving success in uncovering a paved-over and nearly forgotten river during his tenure as mayor of Seoul.  After cleaning it up, the river that Mr. Lee uncovered from a blanket of asphalt runs through central Seoul and counts itself amongst the city's prized landmarks. 

Because of land use issues, President Lee's latest proposal is not without controversy.  On one hand, project supporters (including many residents who live on or near the rivers) argue that the river re-do will improve water quality and supply, help prevent flooding, increase opportunities for recreation (biking and wetlands parks), provide housing, and serve as a model for "green" development.  On the other hand, project opponents (including 400 environmental and other civic groups) have sued to stop it, arguing that the project, if realized, will result in environmental disaster.  Notwithstanding this opposition, prospects for Lee's self-styled "Green New Deal" appear strong.

To read the full story, click here for a link to today's article by Choe Sang-Hun, "Doubts Raised on Ambitious Korean Rivers Project," New York Times (Dec. 14, 2009).

Will Cook, Charleston School of Law

December 14, 2009 in Water | Permalink | Comments (0) | TrackBack (0)

Salkin on NY Local Governments and Climate Change & Energy Efficiency

Patricia Salkin (Albany) has posted New York Local Governments Respond to Climate Change and Energy Efficiency.  The abstract:

While climate change is not exclusively a land use issue, some of the most effective strategies to slow climate change can be accomplished through modifications to building codes, zoning ordinances and other land use regulations. However, to be truly effective and to attain quantifiable results, local governments must implement a variety of tools and techniques and send a consistent message to residents. This paper collects and explores various approaches recently adopted by local governments throughout the State of New York, allowing municipal attorneys and policymakers to consider options for adoption of locally based initiatives designed to reduce our carbon footprint.

Matt Festa

December 14, 2009 in Environmental Law, Green Building, Local Government, Planning, Zoning | Permalink | Comments (0) | TrackBack (0)