Saturday, December 18, 2010
Friday, December 17, 2010
Fred Bosselman and David Callies famously characterize land-use in the United States as "a feudal system under which the entire pattern of land development [is] controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less about what happens to others."
Ouch. To teach this point, perhaps with less bite, my Property classes study Associated Home Builders of the Greater Eastbay Inc. v. City of Livermore. Can one municipality adopt zoning ordinances that incidentally harm a neighboring city? What legal standard ought to protect cities against such ordinances?
Our system that vests most land-use decisions in multiple local municipalities contrasts nicely with China's top-down approach. An article today in the People's Daily Online describes 12 Chinese cities punished by China's Ministry of Land and Resources for illegal land-use. Interestingly, China's Ministry of Land and Resources used satellite imagery to discover land-use illegalities and call out the offending city managers. My experience has been that students better internalize our system and its limitations when juxtaposed with varying other approaches - like China's.
From Fred Cheever at University of Denver:
REGISTRATION NOW OPEN
ROCKY MOUNTAIN LAND USE INSTITUTE CONFERENCE
MARCH 3-4, 2011
UNIVERSITY OF DENVER CAMPUS
Register now for early bird rates of:
Early bird rates expire midnight on February 1, 2011. Rates increase in each
category by $100 on February 2, 2011 except for the Student category.
This promises to be the best RMLUI Conference yet. Our 20th anniversary will
● 2 world-class keynotes, and a special featured presentation
● 32 sessions on today’s critical land use and development issues, including:
Sustainable Economic Development
Please join many of the nation’s top land use practitioners and scholars as we
explore the field’s most challenging subjects, share insights and knowledge
about best practices and begin to map out the region’s next 20 years and the
path to the Next West.
Sounds pretty interesting - I've always wanted to go to this conference. Maybe next year I'll actually make it!
Jamie Baker Roskie
Wednesday, December 15, 2010
Another one from Keith H. Hirokawa (Albany), with Ira Gonzalez (JD Candidate, Loyola-New Orleans & former Chief of Operations/Code Enforcement, City of Miami): Regulating Vacant Property, from The Urban Lawyer, Vol. 42, No. 3, p. 647 (2010). The abstract:
Local governments have recently noted a correlation between the characteristics of neglected properties (e.g., unkempt yards, garbage accumulation, unsightly and dangerous structures) and the onslaught of neighborhood blight. Local governments have also noted the coincidence of unoccupied structures and property deterioration through lack of maintenance. Accordingly, local governments (in droves) have employed the police power to regulate property vacancy. In other words, to clamp down on blight, lawmakers are turning to regulation of non-use of real estate through vacant property regulatory programs.
Vacant property regulations may provide an efficient way for local governments to contain neighborhood deterioration. In a troubled real estate market, such efforts may also support the property owners' interests in the maintaining property values until market conditions improve. However, vacant property regulations pose special, perhaps unanticipated, problems for owners and neighborhoods. This article considers whether the current iterations of vacant property regulation may do more harm than good.
Speaking of the advantages of walkable neighborhoods as opposed to car culture, the USA Today GreenHouse Blog features a study whose findings it characterizes as Walkable Neighborhoods Have Happier People. From the blog:
People who live in walkable communities are more socially engaged and trusting than those who live in less walkable areas, says a new study from the University of New Hampshire. . . .
The researchers scored 700 residents of three communities in New Hampshire on measures of "social capital" such as socializing with friends, civic engagement and trust in their community. They found those in neighborhoods with higher Walk Score ratings reported being happier and healthier and more apt to volunteer, work on community projects or simply entertain friends at home.
The study is Examining Walkability and Social Capital as Indicators of Quality of Life at the Municipal and Neighborhood Scales, published by University of New Hampshire scholars Shannon H. Rogers, John M. Halstead, Kevin H. Gardner, and Cynthia H. Carlson in the journal Applied Research in Quality of Life (2010).
This recent research paper makes the interesting assertion that car ownership and mortgage defaults may have a correlation. That is, the more cars you own, the more likely you are to default. Or, the more you walk, the less likely you are to default.
Since owning and operating a motor vehicle is so expensive (payments, insurance, gas, repairs), this isn't all that surprising. Still, it's interesting to see under this methodology.
Here's the abstract:
Using a sample of over 40,000 mortgages in Chicago, Jacksonville, and
San Francisco, we model the probability of mortgage default based on
differences in location efficiency. We used two proxy variables for
location efficiency: 1) vehicles per household scaled by income and 2)
Walk Score. We find that default probability increases with the number
of vehicles owned after controlling for income. Further, we find that
default probability decreases with higher Walk Scores in high income
areas but increases with higher Walk Scores in low income areas. These
results suggest that some degree of greater mortgage underwriting
flexibility could be provided to assist households with the purchase of
location efficient homes, without increasing mortgage default. They also
support the notion that government policies around land use, zoning,
infrastructure, and transportation could have significant impacts on
mortgage default rates.
Chad Emerson, Faulkner.
Tuesday, December 14, 2010
In the mail this morning, I received a copy of Integrating Spaces: Property Law & Race (Aspen, 2011), by Alfred Brophy (North Carolina), Alberto Lopez (Northern Kentucky), and Kali Murray (Marquette). Here is the description:
Integrating Spaces: Property Law and Race enables you to seamlessly integrate historical and contemporary issues of race and ethnicity into your Property syllabus alongside your casebook. With historical perspective and doctrinal analysis, it maps the directions in which property law has turned in response to issues of race and ethnicity, and demonstrates how racial and ethnic categories continue to affect contemporary property law.
Integrating Spaces: Property Law and Race provides a dynamic social, historical, and doctrinal context for teaching property law:
- nearly 30 new and provocative cases—including the Supreme Court decision in Oyama v. California (alien land laws) and state court and federal court decisions in Trueheart v. Parker and Morison v. Rawlinson (race nuisance cases involving a jazz club and an African American church)
- extensive treatment of Federal civil rights statutes and their implications for environmental justice and the housing and financial crisis
- a close look at the efficacy of traditional property concepts as solutions to minority or cultural requirements—such as easements by prescription for Native American religious uses (United States v. Platt), Native Hawaiian access to sacred sites and beaches ( PASH), and the impact of partition land sales on African-American farmers and indigenous communities
- consideration of an international perspective, including cases on land redistribution in South Africa, cultural property in Australia, and restitution in post-conflict Bosnia and Herzegovina and Guatemala
- legal context and appropriate pedagogy from statutes, excerpted law review articles, and questions for discussion in the notes
- Teacher's Manual that provides additional questions and suggestions for linking the cases to coverage in traditional casebooks
Timely and relevant, Integrating Spaces: Property Law and Race brings a whole new dimension to your Property course. If you’re looking to refresh your teaching experience, challenge your students, or fuel class discussion, order a complimentary copy of Integrating Spaces: Property Law and Race.
A terrific resource!
For decades the trend in most American cities has been one of jobs moving from downtowns to the suburbs. A recent Wall Street Journal piece suggests that this trend may be shifting: Downtowns Get a Fresh Lease: Suburbs Lose Office Workers to Business Districts, Reversing a Post-War Trend. From the article by Anton Troianovski:
As the market for office space shows signs of recovery, the suburbs are getting left behind.
For decades, the suburbs benefited from companies seeking lower rent, less crime and a shorter commute for many workers. But now, office buildings in many city downtowns have stopped losing tenants or are filling up again even as the office space in the surrounding suburbs continues to empty, a challenge to the post-war trend in the American workplace and a sign of the economic recovery's uneven geography. . . .
Statistics show that suburban office markets were hit harder by the recession than their downtown counterparts and are recovering more slowly. The national office vacancy rate in downtowns was 14.9% at the end of the third quarter, the same level as in early 2005—while the suburban vacancy rate hit 19%, 2.3 percentage points higher than in 2005, according to data firm Reis Inc.
In the first three quarters of this year, businesses in the suburbs vacated a net 16 million square feet of occupied office space—nearly 280 football fields—while downtowns have stabilized, losing just 119,000 square feet.
You might argue that simply losing fewer square feet than the suburbs (where the harder-hit industries such as mortgage lending and home building tend to be located) doesn't necessarily presage the long-awaited Return to Downtown. But real estate guru and urbanism advocate Christopher Leinberger detects something bigger going on:
[S]ome scholars, urban advocates, and developers believe a secular shift is under way in the American workplace.
"Young people don't want to be out on the fringe...and as people are beginning to figure that out, it's beginning to get factored into office relocations," said Christopher Leinberger, a real-estate developer and a visiting fellow at the Brookings Institution. "It's a major structural trend that we in real estate are going to have to adjust to."
The WSJ article has lots of links to photos, data, and interactive maps. Thanks to Houston Tomorrow for the pointer.
Ryan D. Dreveskracht (LLM, Washington) has posted Native Nation Economic Development Via the Implementation of Solar Projects: How to Make it Work, forthcoming in the Washington and Lee Law Review, Vol. 68. The abstract:
This Article examines the issues surrounding sustainable economic development in American Indian country via the implementation of solar energy projects. Section II addresses Native American economic development, generally, focusing on Indian gaming, practical sovereignty, capable institutions, and cultural match. Section III discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country, specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. In arguing for the implementation of solar energy projects, Section III of the Article also provides instruction for the realization of these projects by tribes and state/federal regulatory/legislative bodies. Finally, having argued for and laid out a framework for economic development via solar projects, Section IV offers concluding remarks.
Monday, December 13, 2010
Keith Hirokawa (Albany) has posted Sustainability and the Urban Forest: An Ecosystem Services Perspective. The abstract:
Recently, urban forests have drawn attention due to interest in the idea that urban forests provide essential ecosystem services. Indeed, urban forests provide the benefits of a natural, cost effective system of green infrastructure: trees capture air and water pollutants, as well as provide shade, habitat, and even social structure. These services have a surprising but significant economic value, and attention to the design of urban forests can be a local means of capturing that value. From an ecosystem services perspective, the urban forest also reveals that the very existence of the nature in the urban area occurs as both a conceptual and a physical construct. That is, trees in the urban area result from intention and design.
This essay argues that urban forestry is a local opportunity to engage in an exercise of self-determination and local identity. Urban forestry requires an investigation into the ties between the community's environmental, economic, and social needs, a realization of the potential of space and natural infrastructure, and a manipulation of the services provided by trees. Understanding the nature of urban forests as urban, contingent, and constructed empowers local governments to become ecosystem beneficiaries by effectively bringing nature into their communities.
Robert Glennon (Arizona) and Andrew M. Reeves (JD candidate, Arizona) have posted Solar Energy's Cloudy Future. The abstract:
With governments and environmental groups both clamoring for clean alternatives to fossil fuels, the future of solar energy looks bright. To date, however, solar power produces less than one percent of the U.S.’s electricity needs and, despite unprecedented subsidies since the 2008 passage of the American Recovery and Reinvestment Act, very few utility-scale solar projects have broken ground. Solar remains an emerging technology not yet price competitive with fossil fuels, but this efficiency gap alone does not account for the lack of a burgeoning utility-scale solar market - especially when subsidies are considered. Instead, as this article explains, large land and water requirements for utility-scale solar technologies, the arduous permitting process required for proposed sites on public lands, disincentives created by a preference for agriculture, and stringent objections from politicians and environmentalists toward actually siting utility-scale solar projects, better explain the state of solar power in the United States. This article will suggest that solar companies would be wise to focus their efforts to site their projects on private or tribal lands. And, it will suggest that, if solar is ever going to contribute significantly to this country’s energy needs, we must minimize the disincentives and strike a balance between the opposing environmental goals of preserving pristine land and reducing carbon emissions.
Thanks to Emily Talen for sending along this link to a 1960s APA Report entitled "Neighborhood Boundaries".
It's a fascinating read and especially interesting as a tool to compare how land use policy was viewed in 1960 versus how it is viewed today.
From the report:
The concept of the city as a whole, containing a group of component neighborhoods is not new, nor is discussion of neighborhood related problems a recent advent to planners, sociologists, traffic engineers, realtors and others closely involved in the patterns of urban land use. In a paper presented to American City Planning Institute (the forerunner of the American Institute of Planners), Henry Wright said about neighborhood planning:1
The subject bristles with opportunities for research and discussion. Some of the implications are at least disturbing to certain methods of planning and regulation which have been accepted and . . . gained by means of long effort and application and should, therefore, not be lightly tossed aside.
Mr. Wright wrote those words in 1931.
Thirty years later, the subject still "bristles with opportunities for research and discussion."
The main purpose of this report is to gather in a single reference the most important methods of neighborhood delineation and to examine how and to what extent they are used in the field. In attempting to achieve this, the report unavoidably covers controversial areas. The history of discourse and development of the neighborhood concept has not been without differences of opinion, both mild and stormy.
If the origin of the generally conceived neighborhood prototype can be traced to a single source, the credit (or blame), depending on one's point of view, goes to Clarence A. Perry. In a preliminary study in 1926 and in a report published by the Committee on the Regional Plan of New York and Its Environs in 1929,2 Perry enunciated his Neighborhood Theory. Its six basic principles were:
1. Major arterials and traffic routes should not pass through residential neighborhoods. Instead, these streets should provide the boundaries of the neighborhood.
2. Interior street patterns should be designed and constructed through use of cul-de-sacs, curved layout and light duty surfacing so as to encourage a quiet, safe, low volume traffic movement and preservation of the residential atmosphere.
3. The population of the neighborhood should be that which is necessary to support its elementary school. (When Perry formulated his theory, this population was estimated at about 5,000 persons; current elementary school size standards probably would lower the figure to 3,000–4,000 persons.)
4. The neighborhood focal point should be the elementary school centrally located on a common or green, along with other institutions that have service areas coincident with the neighborhood
Chad Emerson, Faulkner.
Sunday, December 12, 2010
Many suspected that local prosecutors delayed an investigation into Las Vegas homeowners associations because of the powerful people potentially involved. High-powered attorneys and former police officers may be implicated in a conspiracy effectuated through a homeowners association.
The Las Vegas Review reports that the local prosecutors were recently removed so that federal prosecutors from Washington could take over over. The details of the alleged conspiracy?
Investigators have targeted dozens of people in what they say was a scheme to rig homeowner association board elections to position conspirators -- including some former Las Vegas police officers -- who would push for lawsuits over construction defects. Legal work and repair contracts then would be funneled to associated lawyers and companies. Millions of dollars were said to be at stake.
Look for more of the same as HOAs grow in number and power.
From the National Building Museum: Intelligent Cities.
What makes a city Intelligent? You do.
For as long as we have lived in cities we have reflected on their form, feel, and function. From the launch of the first hot air balloon to the creation of geospatial information software, we have developed technologies that enable us to assess what we have done, what we are doing, and what we wish to do. Today, the scale and complexity of neighborhoods, towns, and cities are unprecedented, and so are our tools for understanding them. Intelligent Cities, an initiative of the National Building Museum, supported by its partners TIME and IBM and funded by The Rockefeller Foundation, explores the intersection of information technology and urban design to understand where we are, where we want to be, and how to get there.
Saturday, December 11, 2010
Wisconsin's state capital, home to the 2011 Congress for the New Urbanism, is considering the idea of narrowing a key street in the hope that this skinnier street will enhance pedestrian safety:
Under the plan endorsed last week by the city’s Board of Public Works, six blocks of Williamson Street, from Blount to Baldwin streets, will be whittled down from 48 feet to 44 as part of a project that also includes resurfacing the street from Baldwin to Thornton Avenue. “It’ll work, but it will be tighter,” David Dryer, the city’s director of traffic engineering says of narrowing the street.
It’s not unusual for the city to narrow vehicle traffic lanes on a street through a “reallocation” of street width to allow more space for bicycles or to accommodate pedestrians at crossings, he says. But the planned narrowing of Williamson Street is an actual reduction of the blacktop on an arterial street moving traffic through the near east side that is barely standard width now. It would bring the width of the street down from 48 feet to allow an additional two feet of terrace on each side, paring the vehicular traffic lanes from the standard 11 feet wide to 10 feet in each direction and the parking lanes on each side of the street from 13 feet to 12.
Dryer predicts the narrower vehicle lanes won’t have much impact on the flow of traffic for the 18,000 to 22,500 vehicles a day moving along different segments of Williamson Street. “What it is going to do is put more pressure on parking maneuvers and the hardy bicyclists who use the street,” he says. “It’s a trade-off. The neighborhood wanted the wider terrace and the benefits that provided.”
Proponents of the narrower street say it would bring that segment of Williamson back to what it was before a widening project decades ago. They speak of a more intimate street, with the movement of vehicles slowed by a smaller scale and traffic islands.
Skinny streets are one of the most effective ways to slowing down traffic which, in turn, promotes pedestrian safety in urban areas designed for pedestrian activity. The reason is that it forces drivers to be more cautious and aware of their surrounding because of the "tightness". All in all, a much more effective approach than simply putting up a speed limit and hoping that the threat of a speeding ticket slows drivers down.
Read the whole story, here.
Chad Emerson, Faulkner.
Friday, December 10, 2010
Marijuana dispensaries are growing like weeds. The recent ABA article, "Up in Smoke," chronicles some of the chronic problems plaguing states that have legalized medical marijuana. This Blog has already noted Kansler and Salkin's article on zoning law and regulation of "dispensaries."
The fact that municipalities have regulatory power through zoning is part of the problem. Of the fourteen or so states that have legalized medical marijuana, none have a comprehensive regulatory scheme. California, for example, passed a very generalized statute, but local counties and municipalities are left with no guidance on the particulars. Vanderbilt Law Professor, Robert Mikos, posits that "no one has any idea how many medical dispensaries are out there [in California]." To reign in dispensaries, Los Angeles recently cut the number of allowed medical marijuana dispensaries to seventy.
Now that Arizona voters have approved (this past November) medical marijuana, the problem of uniformity and new zoning regulations again arises. Perhaps Justice O'Connor's justification for federalism -- that states serve as laboratories -- rings true for Arizona. In other words, Arizona may have learned from California's mistakes. A model ordinance from the League of Arizona Cities and Towns at least gives some guidance to Arizona municipalities as they struggle to implement the state's newest law.
Thursday, December 9, 2010
A recent report entitled "Megacities of the Move" offers an interesting look into how people currently--and in the future may--move around and among cities. This topic obviously affects land use and development patterns as the great battle between increased and decreased density wages on.
Here's an excerpt:
Exemplifying the important of dense cities organized around transit that discourage sprawl, in the U.S., the modal share of individual car use for cities decreased ever so slightly from 2000 to 2009. But this change occurred only in older and denser cities.
But still, according to the “Megacities on the Move” report, vehicle ownership currently stands at one billion cars and this figure is expected to grow to two billion in the next few decades. Smart growth patterns along with policy are needed to create attractive alternatives to driving.
A Menu of Choices and Incentives Not To Drive
Allocation of road and parking space for public space and public transit alternatives are important. For example, bus rapid transit (BRT) uses existing road infrastructure for buses that run on dedicated lanes. This component of BRT makes the systems cheaper to implement, but also takes space away from individual vehicles and uses it for mass transit. If usage of BRT is high, this frees up more road space for cars.
For the entire article, click here.
Chad Emerson, Faulkner.
Wednesday, December 8, 2010
Ashira Ostrow (Hofstra) has posted Process Preemption in Federal Siting Regimes, forthcoming in the Harvard Journal on Legislation, Vol. 48 (2011). The abstract:
Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states, and the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by a multi-jurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. To that end, Congress has experimented with a variety of preemption regimes aimed at compelling local governments to site nationally relevant facilities, such as radioactive waste disposal facilities and telecommunication towers.
This Article explores the spectrum of federal preemption options, ranging from federal delegation, empowering states to independently design and implement siting regimes, to unitary federal preemption, vesting siting authority in a federal administrative agency and displacing traditional state and local land use authority. In particular, this Article identifies an innovative approach to facilities siting, termed “Process Preemption.” In a Process Preemption regime Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local land use regulators. This Article argues that Process Preemption has the potential to aid in federal siting schemes because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance, of controversial siting decisions.
Prof. Ostrow's article is the co-winner of this years AALS scholarly paper competition, with her presentation to be featured at the January meeting in San Fransisco. Be sure to check it out!
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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
- Water Down Under: A Report from Australia by Barbara Cosens: Post 5: Indigenous Rights to Water and Capacity Building
- 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