January 1, 2010
Happy Land Use New Year!
A happy New Year to all of you with any of the wide array of professional or avocational interests that involve land use. There are probably some interesting land use issues that involve public New Year's celebrations or even traditional New Year's events involving land, but I couldn't think of anything offhand. So let's instead turn our attention to the future with this first post of 2010 and the new decade.
What will happen in the world of land use in 2010? Will the financial crisis lead to new regulations and/or mortgage relief programs? How will the housing market and the real estate industry do? And how will that lead to new trends in buying vs. renting, redevelopment, or urban vs. suburban growth? How will state & local budgets impact land use decisions? Will any other cities embark on the road taken by Miami and perhaps Denver toward form-based codes? What will happen to Detroit? How will the Supreme Court rule on Stop the Beach? What will the market want to see in land development? Will the federal government take any steps to promote community development? How will mass transit fare in the political arena? Eminent domain reform?
I don't know, but it should be an interesting year! Thanks for reading the Land Use Prof Blog and be sure to let us know if you have any ideas or feedback.
December 31, 2009
Land Use at AALS
The AALS Annual Meeting is next week at the Hilton Riverside in New Orleans. Land Use doesn't have its own AALS Section; rather, land use issues are integral to many topical areas across the legal profession, including property law, real estate transactions, state & local government, environmental, administrative, and constitutional law. So, if you are looking for a handy guide to land use-related programs at AALS, or are still deciding whether to head down to New Orleans (a fascinating land use city for a variety of reasons), here is a list I have compiled.
Thursday, Jan. 7
-- 8:15-5:30. Joint Program of Sections of Environmental Law and Natural Resources Law Field Trip [Waitlist].
-- 2:00-5:00. Real Estate Transactions, co-sponsored by Section on Property Law. Program selected from call for papers, to be published in the Indiana Law Review. Co-moderators: Carol N. Brown (North Carolina) & Lloyd T. Wilson, Jr. (Indiana). Speakers: Steven J. Eagle (George Mason); Robin Paul Malloy (Syracuse); Thomas W. Mitchell (Wisconsin); Rigel C. Oliveri (Missouri); Eduardo M. Penalver (Cornell); Aleatra P. Williams (Charleston).
Friday, Jan. 8
-- 7:00-8:30. Section on State and Local Government Continental Breakfast.
-- 9:00-10:00. Poster Presentation sponsored by Section on Property Law. Poster Presenters: Jessica Owley Freeman (Pace); Alina Ng (Mississippi College).
-- 10:30-12:15. Hot Topic: The Katrina Litigation: On the Front Edge of Civil, Constitutional, and Environmental Law. Moderator: Oliver A. Houck (Tulane). Speakers: Joseph M. Bruno, Jr. (Bruno & Bruno); Michael B. Gerrard (Columbia); Carlos A. Zelaya II (F. Gerald Maples, P.A.).
-- 2:15-4:00. Presidential Program I—Transformative Scholarship. Moderator: Robert C. Post (Yale). Speakers: Dana Berliner (Institute for Justice); Richard A. Epstein (Chicago); Catherine A. MacKinnon (Michigan); Charles Swift (Swift & McDonald); Liza Velazquez (Paul, Weiss). Presumably, Berliner and Epstein will speak about property rights.
-- 4:00-5:45. State and Local Government Law: The City as a Political Actor: Powers, Boundaries, Responsibilities. Moderator: Richard Briffault (Columbia). Speakers: Michelle W. Anderson (Berkeley); Lynn A. Baker (Texas); Clayton P. Gillette (NYU); Daniel B. Rodriguez (Texas); Aaron J. Saiger (Fordham).
Saturday, Jan. 9
-- 7:00-8:30. Property Law Breakfast.
-- 8:30-10:15. Environmental Law, co-sponsored by Section on Natural Resources. Climate Change and Legal Education: It’s Getting Hot in Here. Moderator: Douglas A. Kysar (Yale). Speakers: William Boyd (Colorado); Michael B. Gerrard (Columbia); Maxine I. Lipeles (Washington U.); John C. Nagle (Notre Dame).
-- 10:30-12:15. Natural Resources, co-sponsored by Section on Environmental Law. Climate Change and Adaptation in a Federal System. Moderator: Alejandro E. Camacho (Notre Dame). Speakers: Vicki Arroyo (Georgetown); Robin K. Craig (Florida State); Daniel A. Farber (Berkeley); Victor B. Flatt (Houston).
-- 1:45-5:00. New Orleans Neighborhood Solidarity Tour.
Sunday, Jan. 10
-- 9:00-10:45. Property Law: Junior Property Scholars Works-in-Progress. Program selected from call for papers; to be published in the Indiana Law Review. Moderator: Carol N. Brown (North Carolina). Speakers: David Fagundes (Southwestern); Alina Ng (Mississippi College).
That's what I pulled from the program--let me know if I missed anything. Laissez les bon temps rouler!
Hills & Schleicher on the Steep Costs of Noncumulative Zoning
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, forthcoming in the University of Chicago Law Review, Vol. 77, No. 1, 2010. The abstract:
In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price.
In this essay, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a “right to stink” in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city’s own welfare unless the external “agglomeration” benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation.
Looks very interesting. I agree that non-cumulative industrial zoning is counterproductive, not only from the efficiency standpoint but also because it is the mirror image of residential-only zoning, which creates sprawl and prevents mixed use.
Salkin & Ostrow on Cooperative Federalism and Wind
Patricia E. Salkin (Albany) and Ashira Pelman Ostrow (Hofstra) have posted Cooperative Federalism and Wind: A New Framework for Achieving Sustainability, forthcoming in the Hofstra Law Review, Vol. 37 (2009). The abstract:
This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active in providing wind siting guidance to local governments or preempting local control for large-scale wind energy facilities, a majority leave primary siting responsibility in the hands of local zoning boards. Part II then evaluates some of the most commonly raised local objections to wind siting, including concerns over aesthetics, wildlife, noise, safety, and property values. Part III presents an overview of the federal policies that impact the development of wind energy. Although numerous federal grants and tax incentives promote wind energy development, federal policies in this arena are largely uncoordinated and inefficient. Moreover, projects supported by federal dollars and regulatory policies may be unreasonably delayed or entirely prohibited by the local permitting process. Part IV proposes a federal regulatory regime for the siting of wind turbines, modeled on the TCA’s Siting Policy. Specifically, this Part argues that a national wind siting regime that leaves primary siting authority in the hands of local zoning officials but places procedural and substantive constraints on the decision-making process would provide the regulatory uniformity necessary for this capital-intensive industry to fully develop, without sacrificing the benefits of local tailoring or experimentation. The Article, thus, concludes that such a national wind siting policy strikes an appropriate balance between local concerns regarding wind turbine siting and the national interest in developing wind as a renewable domestic energy source.
Craig on Adapting Water Law to Public Necessity
Robin Kundis Craig (Florida State) has posted Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation as Emergency Response and Preparedness, forthcoming in the Vermont Journal of Environmental Law. The abstract:
As a result of both climate change and non-climate-change forces, fresh water supplies in many parts of the United States are approaching a state of crisis. This Article suggests that both the law and public policy should embrace that reality.
Specifically, this Article argues that viewing climate change impacts on water supply as an ongoing emergency could provide a more productive framework for initiating and implementing adaptation strategies. Classifying climate change’s impacts on water supply as a real crisis allows adaptation planning to become a form of emergency preparedness — concrete measures designed to deal with existing problems, recognizing that they are only likely to become worse in many parts of the country. Moreover, reframing climate change adaptation in the water context as emergency preparedness could productively shift the focus of adaptation strategies to the survival of communities as functional communities — that is, as something more than the mere physical survival of individual humans — and allow recognition that communities are coupled socio-ecological systems, dependent on the surrounding natural resources — like water — and the ecosystem services that they provide.
Reframing climate change impacts on water as an emergency, moreover, could provide needed flexibility both legally and politically. Legally, emergencies allow for the doctrine of public necessity, a common-law doctrine that may prove very useful in reallocating water rights, especially in times of significant drought. Finally, this Article argues that public necessity invokes a broader public policy regarding the relationship of individual rights and community well-being that should produce a politically powerful synergy in the context of adapting water law to climate change, given that water is already considered a semi-public natural resource.
Ireland on the "Minnesota Model" for Regulation of Mortgage Brokers
Mark Ireland (Foreclosure Relief Project and Hamline) has posted After the Storm: Asymmetrical Information, Game Theory, and an Examination of the 'Minnesota Model' for National Regulation of Mortgage Brokers and Tomorrow's Predatory Lenders, published in William Mitchell Law Review, Vol. 36, No. 1, 2009. The abstract:
There is a general consensus that the root cause of the most recent turmoil in the domestic and global markets is due to a failure in our regulatory system. Yet, Congress has not supported comprehensive regulation related to the day-to-day activities of mortgage brokers and their relationship with consumers. This article identifies the three regulatory and legislative failures related to mortgage lending, and then examines these failures through the economic concepts of asymmetrical information and game theory. Specifically, how the regulatory failures resulted in mortgage brokers and lenders that were not acting in the best interest of homeowners or the future purchasers of securitized loans. Finally, this Article recommends adopting the “Minnesota Model” as a national framework for regulating mortgage lending. The Minnesota Model was an anti-predatory lending law passed in Minnesota in 2007.
Claeys on Parchomovsky & Stein and the Right to Exclude
Eric Claeys (George Mason) has posted The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein, forthcoming in the Northwestern University Law Review. The abstract:
This response comments on “Reconceptualizing Trespass,” by Gideon Parchomovsky and Alex Stein. Using economic analysis associated with Calabresi and Melamed’s property/liability rule scheme, Parchomovsky and Stein propose a new measure of damages, called “propertized compensation.” Propertized compensation makes ex post damage awards in trespass cases approximate the property-rule incentives the law imposes on trespassers ex ante when their trespasses are ongoing and may be remedied by injunction.
This comment is strongly sympathetic to Parchomovsky and Stein’s prescriptions for propertized compensation, but skeptical about the law and economic methodology by which Parchomovsky and Stein arrive at those prescriptions. The comment recounts, at a level aimed toward readers without specialized interest or training in legal philosophy, three areas of relevant scholarship by corrective justice theorists and conceptual property philosophers. These philosophical authorities explain propertized compensation at least as well as economic analysis, using conceptual and practical moral reasoning already internal to the law. Several of these authorities also suggest that the problems “Reconceptualizing Trespass” criticizes in previous economic scholarship are symptoms of a more fundamental incoherence in the concepts of a “liability rule” over a “right to exclude.”
“Reconceptualizing Trespass” deserves credit for explaining the conceptual problems inherent in the property/liability rule scheme to law and economists in terms law and economists can follow. But this contribution would not have been necessary if law and economists took conceptual philosophy more seriously.
Selmi on Land Use Regulation by Contract
Daniel P. Selmi (Loyola--Los Angeles) has posted Land Use Regulation by Contract. Here's the abstract:
In recent years the use of contracts, known as development agreements, to establish land use regulations has grown rapidly. Both municipalities and development interests have found it in their interests to support the increased use of these agreements. This article, however, suggests that the use of contract as a means of making land use decisions marks a key turning point in the evolution of land use regulation. The article examines the effects of such contracts on four sets of norms that underlie the current land use system. The article concludes that contracts have important effects on whether local governments comply with these norms in making land use decisions.
December 29, 2009
The beautiful cathedral city of Strasbourg, France, has some lessons to teach the US about inner-city transit. It's interesting to note that the debate in Strasbourg wasn't over whether to build more public transit (or eliminate it), but whether to build it above-ground or underground. Ben Adler writes:
"This being France, where the entire political spectrum is to America’s left, the conservatives running for city council in 1989 actually favored building a subway. But the socialists, led by Catherine Trautmann and Roland Ries, wanted to build a new tram. Conservatives and local business owners objected, arguing that a tram would take precious lanes away from cars. But that was exactly the point: to transform streets from hectic, unpleasant gasoline alleys into vibrant, multi-use communal spaces. “The tram means that you change the city,” explains Jonathan Naas, transportation policy coordinator for Roland Ries, who is now mayor. By creating a buffer from the cars, he says, “You create places to walk, outdoor cafes to sit outside.”
Click here for a link to Ben Adler, "The French Revolution: How Strasbourg Gave Up the Car (And Why Midsized American Cities Can Too)," Next American City (Winter 2009).
Will Cook, Charleston School of Law
December 28, 2009
Detroit's Empty Buildings...
As someone who grew up in the Detroit area and lived there through high school, I can attest to the fact that it's downtown has some amazing and beautiful architecture. Indeed, many great architects did some of their best work in downtown Detroit--especially during the first half of the 20th century.
Unfortunately, many of those buildings are now abandoned. This YouTube video surveys some of them.
Now, to be sure, ever since I remember (dating back to the late 70s/early 80s) Detroit has always had a large number of beautiful but empty buildings. However, the extent of the city's abandonment these days seems even more stark than ever before.
From a land use perspective, it's almost impossible to conceive of how to revitalize Detroit's urban core and these buildings. While the downtown street grid is very well-designed and interconnected, there simply appears to be little to no demand for commercial or residential space in the area.
Indeed, this continues to be one of America's greatest urban land use tragedies. That so much beautiful architecture and well-designed urbanism is likely to deteriorate to total waste is immensely saddening.
--Chad Emerson, Faulkner U.
December 27, 2009
Top 100 Urban Thinkers
With the end of the year and the end of the decade (depending on whether you start counting at 0 or 1) at hand, I'm seeing lots of "top" lists, articles, and retrospectives in the last few days. So for the land use crowd, I'll link to Planetizen's list of Top 100 Urban Thinkers. Posted back in September, just before my coeditors and I relaunched this blog, the methodology appears to be a reader poll, but it's a pretty interesting list. Here's the Top 10:
1. Jane Jacobs
2. Andres Duany
3. Christopher Alexander
4. Frederick Law Olmstead
5. Kevin A. Lynch
6. Daniel Burnham
7. Lewis Mumford
8. Leon Krier
9. William H. Whyte
10. Jan Gehl
Others on the list of interest to me include James Howard Kunstler (12), Ebenezer Howard (18), Pierre Charles L'Enfant (21), Baron Haussmann (22), Robert Moses (23), Elizabeth Plater-Zyberk (24), Le Corbusier (26), Richard Florida (29), Bruce Katz (31), Thomas Jefferson (48), Carol Coletta (49), Edward Glaeser (51), Christopher Leinberger (53), Frank Lloyd Wright (54), Walter Benjamin (58), Walt Disney (59), Wendell Berry (63), Prince Charles(?!) (71), Jacob Riis (72), Richard M. Daley (77), Anthony Downs (88), and Henry Ford (100).
Food for thought, anyway, during this season of "top" lists and looking back.
The Legality of Bright Lights...
If you've been to Las Vegas, it doesn't take long to notice the city's love affair with brightly lit signs and billboards. These high-tech, high-pixel creatures come in all shapes and sizes.
Yet, rather than reside in Vegas (with a second habitat in Times Square), these creatures have begun to migrate to all parts of the country. Sometimes it happens overnight in a Baltimore Colts-style operation. Other times, the change is more obvious.
In either case, many conventional billboards are being transformed into brightly-lit, pulsating versions of their more static ancestors.
Alot of questions arise when these changes occur. Several involve complex legal issues. Take, for instance, this dispute in Los Angeles:
The 92 digital signs began popping up several years ago after Los Angeles struck a deal with two billboard companies, Clear Channel Outdoor and CBS Outdoor, which had sued the city over its earlier sign regulations. The 2006 agreement, negotiated by former City Atty. Rocky Delgadillo, allowed Clear Channel Outdoor and CBS Outdoor to modernize up to 840 billboards in exchange for removing 98 -- 3% of their inventory. The City Council approved the deal, but a number of council members have said they did not grasp the effect it would have on some of their constituents.
Last year billboard competitor Summit Media sued the city, alleging that the 2006 settlement in effect exempted the two companies from city zoning laws that other firms were required to follow.
In November, Superior Court Judge Terry A. Green ruled in favor of Summit and invalidated the agreement. But Green said it was up to the city to determine whether to revoke the permits for the Clear Channel and CBS digital billboards. Councilmen Paul Koretz and Bill Rosendahl immediately called for converting all of the brightly lit signs back to traditional billboards, while council President Eric Garcetti and Councilman Ed Reyes proposed studying whether the signs should be modified or demolished. But CBS and Clear Channel appealed the ruling -- putting a stay on Green's order. Meanwhile, council members have asked city officials to evaluate their legal options.
You can read the entire L.A. Times article here.
Much of this dispute relates to the alleged "eyesore" or aesthetic problems with electronic billboards. While that certainly is a valid ground for regulatory consideration, one might find an even stronger case related to the safety effect of brightly-lit digital billboards--especially those that rotate multiple ads.
I know personally that I've been driving along and found myself distracted by these type billboards. So much so that I've heard of others involved in fender benders for this very reason.
Maybe the life/safety angle is a better challenge than the aesthetic one.
--Chad Emerson, Faulkner U.