Thursday, April 29, 2010
Tomorrow is a furlough day for the University System in Georgia, which means I'm forbidden to work. Only faculty and staff who provide "essential services" are allowed to report on furlough days and, ironically enough, instruction is not considered an essential service.
These are lean budgetary times and we're all expected to share the burden. I have no problem with that. However, it's hard not to be concerned about what lies ahead. The legislature is in its final day and hopefully at the end of it we'll have a state budget for FY 2011.
"What does that have to do with land use," you might ask? That depends on how much of a cut the University system takes in the final budget. Last month the legislature asked the Chancellor to submit a budget that included $300 million in additional cuts, over the budget cuts they have already made and were making for 2011. The Chancellor's proposal would eliminate the 4-H program and cut the number of county extension agents in half. In a state where agriculture is a dominant economic force, those cuts are extremely significant. (UGA's Public Service and Outreach branch would also suffer layoffs of up to 47% of faculty and staff.)
It doesn't look as if such extreme cuts will come, but the cut will probably be about $150 million, which is still pretty significant. In state like Georgia, rural communities depend on UGA to fulfill its land grant mission of service. Extension agents are vital sources of knowledge on land use practices, soil and water conservation, and a host of other subjects. As federal stimulus dollars dry up, it becomes increasingly difficult for the University to fulfill those functions. We'll see what lies ahead.
Jamie Baker Roskie
US Transportation Secretary Ray LaHood is blogging bikes, and he's getting media coverage for it -including in The New York Times. First, consider the internet savvyness of an official US DOT blog, "Fast Lane." One doesn't usually think of a high-ranking federal official as the source for an interesting blog.
Next, consider LaHood's words about biking, which suggest something might be different in the culture of the usually auto-focused DOT.
The transportation times, they are a changin'
Jamie Baker Roskie
Simon Thomas McDonnell (NYU--Furman Center for Real Estate & Urban Policy), Josiah Madar (NYU--Furman Center) and Vicki Been (NYU) have posted A Continuing Role for Minimum Parking Requirements in a Dense Urban City? Evidence from New York City. The abstract:
Or, at least, that's the closest English translation for an interesting Korean land use policy that I learned about today.
While visiting with a member of the planning faculty here at Handong University, the topic of "money of right" came up. It was not clear if the concept was actually codified or merely existed as some type of strong custom that was essentially codified in practice.
The policy works like this: X owns Building ABC. X then leases Building ABC to Y. Y opens a restaurant in Building ABC.
Over time, the restaurant becomes very successful and famous. Y ultimately decides to relocate his restaurant to another building.
X (the building owner) then rents Building ABC to Z.
The concept of "money of right" begins at this point. Once Z rents Building ABC he obviously must pay X the rent money. However, because Y and his restaurant brought fame to Building ABC, Z must also pay Y "money of right"--what essentially amounts to payment for the goodwill that Y generated for the building while he operated his restaurant there.
And, here's the real kicker: if Y's restaurant was extremely famous, the "money of right" that Z pays to Y could be more than the rent that he pays to X (though this is somewhat rare).
So, essentially what they have here is a system where a subsequent tenant pays the previous tenant a certain amount for generating goodwill for the building in prior years. A very interesting concept in many ways. I wonder how that would work in the United States?
--Chad Emerson, Faulkner U.
Wednesday, April 28, 2010
Mark A. Edwards (William Mitchell) has posted Acceptable Deviance and Property Rights, forthcoming in the Connecticut Law Review (2010). The abstract:
Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
Check it out-- Prof. Edwards has a lot of interesting posts over at Property Prof, and this article sounds good too.
Tuesday, April 27, 2010
As readers may know, I'm in South Korea for two weeks teaching a Survey of U.S. Intellectual Property Law course in Pohang. While here, I'm also surveying the land use patterns here in Korea. I'll try and add some pictures in a few days but, for now, here are some early observations:
1. The concept of vast single-family detached residential-only subdivisions nearly does not exist in this area. Instead, much of the residential living is in dense, multi-story attached units. And, when I say "dense", I really mean it. Some of the massing of these structures is really immense. While the architecture is much better, the massing is so dense that it is somewhat reminiscent of the large Russian-style attached residential units.
2. Conversely, this means that the Korean development patterns are much more compact. It's really eye-opening to see how compact development ends up being without the proliferation of single family McMansions (or even mini-McMansions or mini-mini McMansions). And, to be clear, its not because there is a lack of land. Indeed, while driving throughout, I've seen vast swaths of open land. Instead, it appears to be more of a policy choice to build more densely and more compactly than the U.S. model.
3. The effect of #2 is that there are many mass transit options. While I have seen many cars (though most are much smaller than the typical American motor vehicle), many individuals walk, ride buses, or ride the expansive national train system. This Friday, I'm actually booked to ride the Korean version of a bullet train from Daegu to Seoul. Once there, I catch the Korean subway in the same station and ride several stops to my hotel. From there, I'll walk or ride the subway to all of my weekend destinations. To get from here in Pohang to the bullet train in Daegu, I have several options: a commuter train, the bus system, or a private taxi.
Needless to say, this reliance on transit requires a change in thinking and planning since you rely on someone else's fixed schedule unlike when one uses their own personal vehicle. Nevertheless, its been very relaxing in many ways to not have access to a car for two weeks in a foreign country nearly 7,500 miles from where I live. Imagine that, eh?
Okay, that will do it for now. I'll share some observations of Seoul later this week. For now, this is Chad Emerson signing off from the Pohang, South Korea bureau of the Land Use Blog...
David A. Thomas (BYU) has posted Whither the Public Forum Doctrine: Has this Creature of the Courts Outlived its Usefulness?, Real Property, Probate and Trust Law Journal, Vol. 44, pp. 637-743, Winter 2010. The abstract:
Tracing both the development of the Public Forum Doctrine and the history of the property rights it affects, in this Article the Author argues that the doctrine currently exists as a tangled mass of precedent that is unworkable in practice. By juxtaposing the current application of the Public Forum Doctrine against a proposed approach that balances the property rights of the owner against the speech rights of the visitor to the land, the Author provides support for the position that the Public Forum Doctrine can be replaced by a more effective means of achieving a fair balance between the competing rights.
Benito Arrunada (Universitat Pompeu Fabra) has posted Electronic Titling: Potential and Risks, New Zealand Law Journal, pp. 115-120, April 2010. The abstract:
Initiatives in electronic conveyancing and registration show the potential of new technologies to transform such systems, reducing costs and enhancing legal security. However, they also incur substantial risks of transferring costs and risks among registries, conveyancers and rightholders, instead of reducing them; entrenching the private interests of conveyancers, instead of increasing competition and disintermediating them; modifying the allocation of tasks in a way that leads in the long term to the debasement of registries of rights with indefeasible title into mere recordings of deeds; and empowering conveyancers instead of transactors and rightholders, which increases costs and reduces security. Fulfilling the promise of new technologies in both costs and security requires strengthening registries’ incentives and empowering rightholders in their interaction with registries.
Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009. The abstract:
Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.
Sara C. Bronin (Connecticut) has posted Curbing Energy Sprawl. The abstract:
Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.
Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.
Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.
I attended Prof. Bronin's presentation of this at ALPS and it's a fascinating paper. Bring on the microgrid.
Monday, April 26, 2010
Our guest editor Ken Stahl wrote a really interesting post yesterday entitled "Are there 'controlled experiments' in land use? Does it matter?" I was so intrigued by his thought-provoking words that I felt compelled to blog my response, rather than just comment.
Of course land use, like all politics, is local. Ken makes a valid point that few people outside of California give much credence to the choices of California's local governments. Certainly, here in Georgia - a much different, more conservative milieu - California examples are widely disregarded.
However, here at the Land Use Clinic we make our living helping local governments and citizens create land use policy. We have to start somewhere, and usually that somewhere is a survey of what other localities have done on a particular issue. If you review the documents on the LUC webpage, you will find many case studies and model ordinances that pull together examples from multiple places both in and outside of Georgia.
On the other hand, often the examples of jurisdictions in other states quickly become irrelevant due to differences in state law or powers granted by a particular state to local governments. For example, California has regional air quality districts hat help localities coordinate local air pollution regulation and give teeth to regional efforts to improve air quality. Georgia has no such structure, and probably never will. I also often warn my students away from Florida examples. One of my students just wrote a memo on school concurrency programs in Florida, and ultimately came to the conclusion that no such local policy is possible in Georgia without a change in state law. Given how distracted the Georgia legislature is right now by other matters, that change isn't likely to come soon.
So how do we, and our clients, reconcile these conflicts? Certainly no one can simply cut and paste together an ordinance from other jurisdictions, but learning how policy choices have played out in other places provides key information for us to create a unique, yet workable arrangement for each of our clients. We're helping folks make law, and even new law must be based on precedent, both legal and practical. It's a delicate operation, and sometimes it works better than others.
Jamie Baker Roskie
Friday, April 23, 2010
Land use appears to resist easy generalizations. We are often told, for example, that although land use is a formal power of the state, it is a matter of inherently "local" concern, involving fine-grained determinations of how proposed land uses will affect the character of a particular locale. Perhaps for this reason, states universally delegate the land use power to local governments. It is also said that every parcel of land is unique. Thus, as I teach my Property students, courts tend to prefer specific performance as a remedy for breach of real estate contracts, although specific performance is generally disfavored as a remedy for breach of other contracts. Likewise, most states have declined to pass the Uniform Land Transactions Act, perhaps out of deference to the notion that all land is unique. Given the apparent place-specific nature of land use, it is not surprising that many scholars tend to write about their own place -- so Jamie frequently writes about land use conflicts in Georgia, Matt about Houston, and my last several posts, here, here and here, have been mostly about southern California.
When I present my research on southern California's growth politics, I am often faced with a question or comment the gist of which is: "I'm from [Place X.] Why should I care what happens in southern California?" If, as the previous paragraph suggests, generalizations about land use are extremely difficult, how can we even answer this question? I typically answer it by noting that 1) southern California has long been a template for land use trends (and other political and cultural trends) throughout the nation and, 2) it is a fascinating case study in its own right. But both answers have proven unsatisfying. "Southern California as a template" works to an extent, but I quickly find that there are aspects of southern California's urban development that are so idiosyncratic as to greatly limit the usefulness of cross-jurisdictional comparisons. In other words, I run right smack into the problem I identified at the start, that every land use issue is unique and resistant to generalizations. "Southern California as a fascinating case study" solves that problem, but then brings back the "Why should I care?" question.
A palliative, if not a solution, to this problem arrived in the form of a passage from The Deliberative Practitioner, a book by John Forester, a professor of Urban Planning at Cornell. Forester recounts a conversation with a colleague in which the colleague expressed concern about presenting his research on urban planning in Cleveland because he worried that his work would be seen as "too Cleveland," not sufficiently national in scope. Forester's response: "There are no controlled experiments" in land use planning. Every city, every land use dispute, every political environment is unique, and efforts to generalize from one experience are doomed to fail. Thus, Forester argues, we should focus on the particular, on the "stories" planners tell of their own domestic milieus, rather than impressing those stories into the service of some grand scheme.
Forester's insight certainly made me feel better about the "who cares?" question, but didn't exactly answer it. If it is impossible to generalize from the particular, does that mean land use scholarship has value only within whatever local environment it studies? Can we draw no useful general principles from particular case studies?
Perhaps we need to add a bit of the lawyer's skill set to the planner's. After all, we common-law lawyers are trained in the art of distilling general principles from specific cases, of making comparisons between cases by highlighting important factual similarities, as well as distinguishing cases by identifying significant factual differences. Maybe when writing case studies of land use issues, it's a simple matter of making sure to separate those aspects that we think are generalizable from those that are unique to the specific circumstances of the case. Furthermore, it may well be that what makes a particular situation unique is also precisely what makes it an interesting object of study. To apply these principles to my case: I try to articulate that southern California's growth politics are typical of the polarization between developers and NIMBYs that we see in other growth conflicts throughout the nation, but that its politics are also unique because of the historical role of land development in the region's economy, the strong sense of neighborhood identity, and the willingness to resort to the initiative process to resolve issues of public policy. But I also make the case that southern California's uniqueness makes it a particuarly useful case study, because the animosity between developers and NIMBYs there is so acute that we can see it suffusing local politics (especially in public relations campaigns over slow-growth initiatives), where such animosity would perhaps remain latent elsewhere.
This is all well and good, but still leaves some lingering questions. Why must scholarship be "useful" anyway, rather than merely interesting or informative? Do we really need to justify our use of case studies by explaining their broader relevance? Is it sufficient to contribute something of value to the world's store of knowledge?
Thursday, April 22, 2010
While we have heard a great deal over the years about the need to diversify our transportation systems to reduce greenhouse gases and to prepare for peak oil, the Eyjafjallajokull eruption demonstrates that our present transportation monoculture is simply not sufficiently resilient even under normal conditions, for it is incapable of responding adequately to unexpected stressors. The lack of diversity and redundancy in our transportation infrastructure thereby threatens the stability of every other system that interacts with it, including food, business, tourism and the countless human needs dependent on it.
The blogger, Michael Dudley, points out that if the volcano erupts for up to a year (which apparently it has in the past) it could make a dramatic difference in lifestyles and transportation patterns.
Since I don't have any current travel plans, I haven't been following the volcano very closely. I did live in Portland, Oregon when Mount St. Helens erupted, and I remember the strange and dramatic events during those days - including hosing ash into the storm sewers and wearing surgical masks around in public. However, the Eyjafjallajokull fallout is bigger, both literally and metaphorically. Will we adapt?
Jamie Baker Roskie
So what do you do on a 14 hour and 35 minute flight? Hopefully, sleep well, eat lightly, and enjoy some reading time.
That's my plan as I fly from Atlanta direct to Seoul this Friday to teach a two-week Introduction to U.S. IP Law in Pohang, Korea. And, while its not a land use course, I am looking forward to surveying land planning and development in Korea. They have a nice high speed rail system so hopefully I'll be able to tour around some.
In prep for the visit, I found this article which, though a bit dated now, is still a pretty good introduction to Korean land use policy. Can anyone else recommend any other articles or, better yet, "must see" projects in Korea? If so, please email me at firstname.lastname@example.org.
I'm going to try and post several pictures of interesting land use observations while in Korea so be on the lookout for those over the next couple of weeks.
--Chad Emerson, Faulkner U.
Wednesday, April 21, 2010
Here's another paper posted by Eva Pils (Chinese University of Hong Kong): Waste No Land: Property, Dignity, and Growth in Urbanizing China. The abstract:
Tuesday, April 20, 2010
They imploded Texas Stadium recently, which was in the suburban city of Irving in the DFW metroplex. What is Irving going to do with all of that land? Turns out they have a plan, as described in this story: Texas Sprawl Goes Out With a Bang: Development Sprouts on Irving Transit Line.
Part of the reason for the assessment of market demand for urbanism is that the nearby Las Colinas area that is home to corporate offices but lacking in other dimensions.
Monday, April 19, 2010
From last week's Economist, an editorial about whether Portland, Oregon's success as a environmentally-friendly, dense, bikable community can be replicated, or whether it is unique.
I'm a Portland transplant; I attended Lewis & Clark College and lived there for eight years post-undergrad. There are some things I miss about Portland, and many things I admire about its transformation as a city. However, when folks here in Athens hold up Portland as a paragon and model, I get a little itchy. I hate to sound like an old-timer, but the house we bought for $65,000 in 1992 is now easily is now worth four times that. The neighborhood grocery store has been replaced by Whole Foods, and the local restaurants and repair shops are now upscale eateries and boutiques. The city may be more desirable, but it feels more elitist. Is it possible to have one without the other?
Jamie Baker Roskie
From Robin Kundis Craig at Florida State:
The video of the event is available on our website. I hope that many of you will find this Forum helpful for yourselves and for your classes!
Jamie Baker Roskie
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- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy
- Fennell and Peñalver on Exactions Creep
- March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities