Saturday, December 26, 2009
Happy Boxing Day! I hope everyone is enjoying their holidays and spending as little time as possible on the computer. However, here at our house everyone (except the breakfast cook) is sitting around the dining room table surfing the internet or playing games on their laptops. This is a good time to catch up on the news, and today I find two articles about one of the Land Use Clinic's clients, the Athens Land Trust. Unfortunately the news is a controversy about a house the Land Trust is building in a local subdivision called Forest Heights. The editor of Athens weekly Flagpole covers the dimensions of the problem as well as I could, and there is also a good piece in the Athens Banner Herald. It's a not uncommon fight about affordable housing in a middle class neighborhoods, with an anti-modern architecture twist. The staff and board of the Athens Land Trust (which, in full disclosure, includes my husband) is a wonderful, talented, goodhearted group and they're taking a lot of heat for trying to do the right thing. I hope for a good outcome.
Jamie Baker Roskie
In a bit of international land use news comes this story from the Associated Press: Doomed China Restaurant Hires Live-In Protestor.
BEIJING -- Wanted: One live-in protester, $146 a month, no days off.
When the managers of a Beijing restaurant marked for demolition were too busy to fight it, they posted an Internet ad and hired a stranger to stay there around the clock. The job seems to be a first for China, where frenzied urban construction has led to violent evictions, protests and even suicide.
Apparently the issue of forced demolition to make way for redevelopment is gaining traction in China due to recent trends:
China has struggled for years with the issue of forced evictions. But some say the violent protests against forced evictions have increased this year, as a massive government stimulus plan has made loans for construction easier. Under law, land seizures are meant to be for public interest projects, but angry citizens have protested evictions meant to make way for shopping malls and luxury apartments.
It's not clear how many Chinese have been affected by forced evictions. But the Beijing restaurant is not far from the area where rights groups say perhaps 1 million people were kicked out of properties to make way for last year's Olympic venues. Next door, a separate demolition project has left a patch of rubble the size of a football field.
Of course, we have heated controversies here in the US when people are forced to give up their land for redevelopment projects. But this isn't like a Kelo situation or an Atlantic Yards, where government involvement lends the legitimating public-use rationale to projects that will be led by private developers; in China these controversies seem to be purely private-to-private transfers. It would be interesting to see the text of the China's takings law referred to in the article. In the case of the Fish Castle Restaurant Bar in the story, the restaurant owners are being forced out of a lease apparently without compensation because the landlord wants to make way for a shopping center with apartments (mixed-use urbanism?). The story involves the live-in protestor-for-hire and thuggish tactics by the would-be developer.
Eminent domain and compensation laws may differ around the globe, but the conflict between putting property to its highest use and the individual's desire to protect his or her property appears to be more universal.
Thursday, December 24, 2009
I had my annual viewing of It's a Wonderful Life, Frank Capra's 1946 classic, the other day, and it reminded me that a few commentators over the last year have drawn comparisons between the world of Bedford Falls and the Bailey Building & Loan, and the conditions that caused the current mortgage crisis.
The comparisons seem to go in two directions. Some have argued that when America ditched the Bailey Building & Loan model of small local banks as the locus for local real estate development and financing in favor of the nationalized lending institutions and international trading of pooled mortgage-backed securities, it set us on the road to ruin. But others have argued that it was the very assumption advanced by George Bailey that individual homeownership was the sine qua non of civic life and human flourishing that led to suburban sprawl, the decline of cities, and the irrational financial overleveraging that led to the subprime bubble.
Below are some links to articles comparing It's a Wonderful Life to the mortgage crisis, and I'll leave it to you to decide which critique is more persuasive, or whether there are elements of both that are true.
Just yesterday, Ray Brescia (Albany Law) sided with the Bailey Business & Loan and the CRA in "Banker's Holiday: Strengthen 'George Bailey's Law'" on the Huffington Post.
Andrew M. Rosenfeld (Chicago Law) compared the localized backing of whole mortgages with the national market process for securitzed mortgages last year Newsweek's "It's a Wonderful Mortgage Crisis."
Ross Douthat in the Washington Post suggested laying much of the blame on George Bailey for the expansion of easy credit and government overpromotion of suburbia in "Not So Wonderful Now: Looking for someone to blame in the worsening crisis? Let's go back to Bedford Falls". Douthat ultimately comes back to a limited defense of Bailey's vision, though.
I know that others have remarked on this theme so leave a comment if you know of a good one that I missed.
Watching the movie again left me with one more related thought: which is better, Beford Falls or Potterville?
Capra's audiences have long assumed that the quaint Bedford Falls was the ideal American community and that the wild Pottersville was dystopia. But a few years ago in Salon Gary Kamiya challenged this assumption head on in "All Hail Pottersville" with the simple observation that "Pottersville rocks!" I think there's something to be said for this. Bedford Falls does look a little boring. Putting aside the implication that instead of middle class homeowners Pottersville's denizens were all living in Mr. Potter's tenement slums, there is no reason that a community can't have a vibrant downtown accessible by neighborhoods. I know that Pottersville was painted to look like Sin City, but it also provided a busy and walkable area (with plenty of cops on hand to harass disoriented middle-aged bankers and guardian angels), and who's to say the more wholesome entertainment venues aren't thriving just a block or two away off of externalities generated by the seemingly popular Pottersville downtown entertainment district?
Maybe James Lileks put it best: "We all want to live in Bedford Falls . . . but we all would like a night in Pottersville." But wouldn't a good new urbanist say that they can both exist in the same community?
Wednesday, December 23, 2009
In our on-going effort to find a land use angle on the Tiger Woods scandal, I give you a recent article from The New York Times T Magazine. The writer describes a mansion Tiger and his wife (at least for now) are building in Jupiter, Florida.
Now I find it hard to believe that any country club would fail to admit the world's best golfer, no matter how non-WASPY he is, or how scandalous his current reputation. I think athletic achievement surmounts race, class and moral differences in our culture. However, the fact that these enclaves still exist raises interesting issues in our supposedly post-racial, egalitarian society.
On a side note on identity issues, for a great take on WASPs and their role in our society, I highly recommend Cheerful Money by Tad Friend. I read it at the same time as President Obama's first book, Dreams from My Father. Reading these two books together gives lots of food for thought on how racial identity informs our lives - and often, our settlement patterns. One of Friend's themes is what to do with the shambling family mansion in the exclusive neighborhood that few of the original WASP families can afford to maintain. Obama writes about his days of community organizing in one of the poorest, most polluted sections of Chicago. A stark contrast, to be sure, but each interesting and informative in its own way.
Jamie Baker Roskie
Tuesday, December 22, 2009
As I've previously posted, a Land Use Clinic client, Newtown Florist Club and the Newtown neighborhood, has been the subject of a three article series in the Gainesville Times. The final article contains reaction from public officials to our proposals to amend the city's noise and air pollution ordinances. We're trying to get the city to enforce some industrial performance standards to control the serious noise and dust caused by the neighboring scrapyard and other industry. As you can from the article, it's a long and difficult struggle. I encourage you to view the slide show, which shows the level of aesthetic nuisance the neighborhood endures.
Jamie Baker Roskie
Monday, December 21, 2009
Visit our little new urban neighborhood when the weather is warm and you're likely to see a small flotilla of golf carts cruising through the neighborhood's narrow streets. In fact, the trend became so popular that the development--with its private roads--had to establish regulations for who (primarily how old you had to be) and where you could drive the golf carts (NOT on the sidewalks).
Now, I'll admit that my wife and I abstained from this trend. Partly because we live just a block or so from the pool and market and YMCA. But, also because some might reasonably suggest that the point of living in a walkable and bikable neighborhood is to, well, walk and bike.
That's not to say that I've never enjoyed a nice golf cart ride through the interconnected grid of The Waters. And, while my little objections don't nearly reach the level of this neighborhood golf cart battle, we've continued to resist the urge to electrify our TND experience.
But, there are now some serious questions regarding whether even a faux Luddite like me can resist this tantalizing carrot: free golf carts for those who make income.
Don't believe me? Check out the full story here.
As you can imagine, both municipalities and homeowners associations might be faced with an even more pressing need to draft on-street golf cart regulations than ever before...
--Chad Emerson, Faulkner U.
Sunday, December 20, 2009
On a recent trip through Richmond, Virginia, I was reminded of the profound sense of disappointment my parents experienced when legendary Richmond department stores--Miller & Rhoads and Thalhimers--decided to close their doors after years in business. During their early married days in that city, prior to malls and chain merchandising and even long after they ceased to live there, these two stores served as more than favored shopping venues: they served as places in which to dine, have a rendez-vous with friends "Under the Clock," or share afternoon tea with visiting grandmothers from South Carolina who couldn't wait to visit the milliners there for their annual Easter hats. The stores served as impressive visual landmarks, too, and community focal points where people still dressed up to shop; their closures marked the beginning of a downward turn in Richmond's once vibrant downtown. Although this part of Richmond has started to come back to life, the vibrancy they once injected into that city's land use won't be recaptured soon. Dwight Young of the National Trust's Preservation Magazine wrote recently on this topic, so for all of you who miss a favorite corner grocery, hardware store, soda counter, local Woolworth's, or bakery, read more by clicking here.
Will Cook, Charleston School of Law
Christopher Serkin (Brooklyn) has published his article Existing Uses and the Limits of Land Use Regulations in the recent issue of the New York University Law Review (Vol. 84, p. 1222). The abstract:
This Article identifies the various ways in which property law provides special protection for existing uses, explores the possible justifications for this protection, and argues that none of them support the strong protection that existing uses currently enjoy. Various land use doctrines, from zoning, to the vested rights doctrine, to amortization rules for prior non-conforming uses, all assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Moreover, many of the obvious-seeming normative justifications dissolve on closer inspection. Concerns about reliance on government regulations and underlying principles of fairness are not conceptually different for regulations prohibiting future uses and regulations of existing uses. Nor is the extent of economic loss necessarily greater for one than the other, even though regulations of existing uses involve out-of-pocket costs, whereas regulations of future uses implicate forgone profits. In fact, none of the possible explanations for the special treatment of existing uses actually justifies their protection. This Article ultimately concludes that existing uses should not be entitled to any special judicial protection but instead should be subject to the same takings and due process analysis that applies to all regulations and government actions.
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- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs
- Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)