Friday, April 16, 2010

APA's National Planning Conference

The American Planning Association held its National Planning Conference, where 5,000 planners met last weekend in New Orleans.  Coverage of the conference is available at the APA's website.  They have a number of column-length press release articles about each of the major events, including the opening keynote by HUD Secretary Shaun Donovan; the interesting-sounding Delta Urbanism Symposium; the APA/AICP Annual Meeting; the closing keynote by White House Urban Affairs Director Adolfo Carion, Jr.; and other events.  According to the APA's write-up, Carrion spoke for President Obama:

"I bring you greetings on behalf of the President of the United States of America," said Carrión. "I think you know more than most associations, professions, or interest groups that the President really gets this profession. He understands the importance place planning plays in the national and global conversation."

In an inspiring speech, Carrión explained the administration's support for smart planning, innovation, and sustainability to make our cities, towns, villages, and country a better place to live. . . .

He explained that it is the job of the federal government to support our local communities and help create a better quality of life.

The APA website also has photos and links to media reports about the National Planning Conference.

Matt Festa

April 16, 2010 in Conferences, Federal Government, HUD, Planning, Smart Growth, Sustainability | Permalink | Comments (0) | TrackBack (0)

The Economist on Kelo as the worst opinion of Justice Stevens

On the news of Justice Stevens' retirement announcement, I linked to an article by John Echeverria that makes a generally positive portrayal of Justice Stevens' overall legacy in the area of property law.  The Economist, however, focuses on his Opinion for the Court in Kelo, with a thumbs-down.  On its American politics blog is the article Kelo: The worst decision of Justice Stevens.  It begins:

IN A long and distinguished career, Justice Stevens wrote many decisions that I applaud. . . .

But his opinion in Kelo v New London (2005) was simply terrible. . . .

The article goes on to say: "This massively expanded the government's power of eminent domain."  Most legal scholars would probably disagree with that statement, at least with respect to the Berman and Midkiff precedents.  It continues with a description of the backlash and speculates that then-Governor Janet Napolitano's veto of an Arizona anti-Kelo measure would be a problem for her should she be nominated for the Court vacancy. 

April 16, 2010 in Caselaw, Eminent Domain, Politics, Property Rights, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 14, 2010

Keep Houston Ugly

So last night after yoga class I'm standing in the check out line at our local Earth Fare and I spot the latest issue of Good.  This issue's theme is "Here Comes the Neighborhood." Given all the work I've done with neighborhoods (including my own) over the years, I purchased this as a must-read.

I've just started digging in, but I came across something immediately blog-worthy - a quiz about local slogans.  It turns out that "Keep Houston Ugly" is one of the several "Keep America Beautiful" riffs around the country.  For whatever reason, Texas has several, including "Keep San Antonio Lame" (care to explain that one, Matt?), "Keep Austin Weird" (heard that one before), and "Keep Waco Wacko" (fair enough).

Athens needs a better slogan than "The Classic City" (besides "Keep Athens-Clarke County Beautiful" which is a great organization but not a great slogan).  Maybe I'll start a "Keep Athens..." contest .

Jamie Baker Roskie

April 14, 2010 in Georgia, Houston, Humorous | Permalink | Comments (2) | TrackBack (0)

Easements & Beach Renourishment on the Jersey Shore

You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show.  Long Beach Island is an 18-mile barrier island that's mostly low-density residental development.  (I even lived on LBI for a short time growing up, and I turned out mostly OK).  The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:

LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.

The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.

"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.

We're all familiar with land use contests over beachfront property, from Lucas to Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases.  But the more typical framework pits the individual landowners against the power of the state.  Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.

"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."

Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights.  And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?).  The question is whether you need to do that not just for the collective good but to save your house from falling into the sea.  Of course there is one other solution not yet on the table:

Long Beach Township officials say eminent domain and its potential costs are a last resort.

Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang.  So condemning an easement through eminent domain might prove well beyond the township's resources.  The holdouts may well be either unreasonable or even acting against their own self-interest.  But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors.  We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community.  Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.

Matt Festa

April 14, 2010 in Beaches, Coastal Regulation, Eminent Domain, Local Government, New York, NIMBY, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

Salkin on Renewable Energy and Land Use Regulation

Patricia Salkin (Albany) has posted a two-part piece on SSRN: Renewable Energy and Land Use RegulationALI-ABA Business Law Course Materials Journal, p. 47, February 2010.  Here is the link to Part 1 and its abstract:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

Part 2 and abstract:

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Very relevant and timely.

Matt Festa

April 13, 2010 in Clean Energy, Environmental Law, Green Building, Local Government, Oil & Gas, Property, Scholarship, State Government, Wind Energy | Permalink | Comments (1) | TrackBack (0)

Chiappetta on The (Practical) Meaning of Property

Vincent Chiappetta (Willamette) has posted The (Practical) Meaning of Property, Willamette Law Review, Vol. 46 (2009).  The abstract:

The paper argues that defining property functionally – as a flexible tool for implementing all manner of social decisions allocating control over available resources rather than in terms of fixed attributes or outcomes – substantially clarifies related public policy debate. The approach reveals we should reject characterizations of property as “good or bad” or as a “yes-or-no” proposition to which we react as well as the assumption that those with whom we disagree about its proper deployment are fools badly in need of enlightenment, or worse. These false dichotomies distract us from the core difficulty in property debate – our honestly and strongly held but conflicting beliefs regarding what constitute “just” resource control outcomes; a disagreement we should acknowledge cannot be fully resolved by reason, much less passion. Finally, the functional approach keeps us resolutely focused on the practical effects of our respective normative positions and, in particular, on the consequences if the resulting property rules fail to adequately “deliver the goods” to all concerned. When a society’s property law does not produce “enough and good enough for all” those suffering the adverse effects must ultimately abandon the joint enterprise, a process history shows to be both unpleasant and unpredictable regarding winners and losers (if those terms can be said to apply at all). This practical distributional inquiry does not (and cannot) mandate individual or group action, but it does merit serious consideration every time we find ourselves debating how “best” to use property law to allocate control over increasingly scarce and contested resources.  

Matt Festa

April 13, 2010 in Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Hot Topics in Land Use--ABA Section on State & Local Government

The ABA Section on State and Local Government is focusing on land use for its spring virtual meeting.  From the announcement:

Land Use Hot Topics
Friday, April 30, 2010

A Part of the Section of State and Local Government Law's Virtual Spring Meeting

This popular annual program will cover the hottest developments in several areas of the law related to land use regulation.

Among the expected topics are:

  • The Religious Land Use Update;
  • Recent Developments in Comprehensive Planning;
  • Elected Official Immunity in Making Local Zoning Decisions;
  • Regulating the Vacancy of Property; 
  • The Miami Beach Art Deco District: A continuing case study of Preservation and its Discontents
  • Accommodating Zoning:  Uses and Limits of the Fair Housing Act and Americans With Disabilities Act
  • And much more……

See the website linked above to register for the virtual CLE.

Matt Festa

April 13, 2010 in Conferences, Local Government, Planning, RLUIPA, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Krugman on Georgia Bank Failures

Illustrious economist and New York Times columnist Paul Krugman has directed his learned attention toward the failure of small banks in Georgia.  Why? Embarrassingly enough, it's because Georgia leads the nation in bank failures, and the majority of those banks are small.

Georgia is part of what Krugman charmingly labels "Flatland" - where "permissive zoning and abundant land make it easy to increase the housing supply, a situation that prevented big price increases and therefore prevented a serious bubble."  In most of Flatland, by Krugman's reckoning, no housing bubble means fewer bad mortgages means fewer bank failures.  No so in Georgia.

Georgia’s debacle is that it doesn’t seem to have anything to do with the issues that have dominated debates about banking reform. For example, many observers have blamed complex financial derivatives for the crisis. But Georgia banks blew themselves up with old-fashioned loans gone bad.

And for all the concern about banks that are too big to fail, Georgia suffered, if anything, from a proliferation of small banks. Actually, the worst offenders in the lending spree tended to be relatively small start-ups that attracted customers by playing to a specific community. Thus Georgian Bank, founded in 2001, catered to the state’s elite, some of whom were entertained on the C.E.O.’s yacht and private jet. Meanwhile, Integrity Bank, founded in 2000, played up its “faith based” business model — it was featured in a 2005 Time magazine article titled “Praying for Profits.” Both banks have now gone bust.

So what’s the moral of this story? As I see it, it’s a caution against silver-bullet views of reform, the idea that cracking down on just one thing — in particular, breaking up big banks — will solve our problems. The case of Georgia shows that bad behavior by many small banks can do as much damage as misbehavior by a few financial giants.

Krugman's formula for reform in Georgia is better protections against predatory lending.  Former Democratic Governor (and predatory lending lawyer) Roy Barnes tried hard for those protections when he was in office, only to have them later rolled back.  Will this latest crisis change that calculation?  Probably depends on the next governor, who might be - Roy Barnes.  Predictions about how that race might come out are probably beyond even Krugman's prognosticating skills.

Jamie Baker Roskie

April 13, 2010 in Finance, Financial Crisis, Georgia, Mortgage Crisis, Politics, Sun Belt, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

Justice Stevens (and Prof. Echeverria) on property rights

With all the news about Justice Stevens' retirement announcement, I haven't seen any immediate discussions yet of his legacy in the area of property rights and takings.  In his 35 years on the Court, Justice Stevens went from joining then-Justice Rehnquist's dissent in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (arguing that the NY Landmark law effected a compensable taking of property rights) to authoring the majority opinion in Kelo v. City of New London, 545 U.S. 469 (2005) (upholding the government's exercise of eminent domain power over private homes under the Public Use Clause as part of a plan to promote economic development).  With these and many other important property law cases, Justice Stevens has had an influential role in the development of American land use law. 

To get a great understanding of Justice Stevens' legacy in property rights and land use law, I highly recommend an article by John Echeverria (Vermont Law School) called The Triumph of Justice Stevens and the Principle of Generality, Vermont Journal of Environmental Law, Vol. 7, No. 22 (2005-06).  The trajectory of the article describes the trends in Justice Stevens' jurisprudence over time:

Justice Stevens was appointed to the Supreme Court by President Gerald R. Ford and took his seat on the Court on December 19, 1975. In rough outline, Justice Stevens’ career on the Court in relation to takings doctrine falls into three discrete phases. The first should be called the Era of Disinterest, because for the first ten years of his career (with one notable exception) Justice Stevens wrote and did little of significance in the area of takings. This lack of activity may have reflected a lack of curiosity about the issue, or perhaps the lesser influence that a junior Justice customarily exerts. The second phase should be called the Era of Exile, because it is characterized by a series of dissents, usually expressing his views alone, reflecting increasing disillusion with the direction of the Court's takings doctrine, including in First English Evangelical Lutheran Church v. County of Los Angeles, Dolan v. City of Tigard, and Lucas v. South Carolina Coastal Council.  The final phase should be called the Era of Triumph, because it represents Justice Stevens leading a firm Court majority in the articulation of an increasingly coherent vision of takings law, one that cuts back in important respects on the decisions from which Justice Stevens dissented during the Era of Exile.

And a bit from the intro on Echeverria's thesis:

[T]his paper seeks to focus on the substance and internal logic of Justice Stevens' thinking over time, and attempts to discern whether and how his thinking has influenced the overall direction of the Court's takings decisions.  As discussed below, an examination of Justice Stevens' career reveals a number of interesting and important themes, including (1) support for the broad authority of the political insitutions of government to reshape the content of property interests over time; (2) opposition to the temporary regulatory takings theory; and (3) emphasis on the need for an interpretation of the Takings Clause that does not intrude too deeply into the political process or interfere with the ability of government to respond flexibly to emerging social problems.  Over time, Justice Stevens' consistent articulation of these themes has greatly influenced the Court's takings decisions. 

But the most significant—and certainly the most consistent—thread of Justice Stevens’ thinking on takings has been his focus on whether the challenged government action is general in character, affecting not only the claimant but others in the community as well, or whether instead the action singles out a particular owner for unique treatment. As will become apparent from the discussion that follows, Justice Stevens’ focus on the issue of generality reflects two underlying considerations. The first, rooted in straightforward economic theory, is that general regulations should be less likely to raise takings concerns than particularized restrictions because they typically produce both burdens and countervailing benefits for individual property owners. The second is that when political institutions act in general terms, rather than in a targeted fashion, there is more reason for confidence that the decision reflects a thoughtful, carefully considered assessment of all relevant costs and benefits, rather than the opportunistic highjacking of the political process to benefit some special interest.

Anyone interested in Justice Stevens' legacy for property law should check out Echeverria's article. 

Matt Festa


April 12, 2010 in Caselaw, Constitutional Law, Eminent Domain, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

NYT Covers Threats to Environmental Law Clinics

Recently I posted about an attack by the Maryland legislature on the environmental clinic at U. of Maryland.  The clinic recently filed suit against Perdue and a local grower over environmental violations in their chicken farming operations.  Now the MD leg. wants say-so over who the clinics will take as clients.  If this causes some cognitive dissonance for you, as it did for me, a colleague of mine cleared it up for me - it seems as if the idea is to force the clinic director to do something that will cause her to violate the Rules of Professional Conduct, and thus be disbarred.

If this was a one-off situation, we could be concerned and possibly outraged, but the reality is that environmental clinics are subject to a chilling effect over taking controversial clients, or cases that threaten the interests of powerful businesses.  Now The New York Times has done an article and an editorial about the pervasive dampening effects of this trend on the clinics' ability to take good cases that make good learning experiences for students. The most compelling quote from the article:

Law clinics at other universities — from New Jersey to Michigan to Louisiana — are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.

“We’re seeing a very strong pushback from deep-pocket interests, and that pushback is creating a chilling effect on many clinics,” said Robert R. Kuehn, a law professor at Washington University in St. Louis, citing a recent survey he conducted that found that more than a third of faculty members at legal clinics expressed fears about university or state reaction to their casework and that a sixth said they had turned down unpopular clients because of these concerns.

Here at the Land Use Clinic we do transactional and policy-based work that tends to be less controversial.  However, I sometimes wonder if a powerful interest will resent our involvement in one of the more entrenched community controversies in our caseload.  Therefore, I will continue to follow, and blog about, this important issue.

Jamie Baker Roskie

April 12, 2010 in Environmental Law, Politics, Teaching | Permalink | Comments (0) | TrackBack (0)

Van Erp on Deconstruction and Reconstruction of European Property Law

Sjef J. H. M. Van Erp (Maastricht) has posted Deconstruction and Reconstruction of European Property Law: A Research Agenda, from LEGAL ENGINEERING AND COMPARATIVE LAW, E. Cashin Ritaine, ed., 2009.  The abstract:

To develop a truly European property law, which can function as a new “ius commune” bringing together the various European property law traditions (common law, civil law, mixed jurisdictions), a thought process of deconstruction and reconstruction is needed. This article develops a research agenda for such a thought process. It focuses on Europe’s so-called “economic constitution” and the building blocks of property law systems; it also presents a preliminary analysis of the subjects, objects, legal relations and policy choices upon which a European property law can be built.

Matt Festa

April 12, 2010 in Comparative Land Use, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 11, 2010

Land Use, housing, and the Middle East

A couple of weeks ago, a land use issue became a flashpoint in the continuing discussion over Israel and Palestine.  When Vice President Biden was visiting Israel, it was seen as an affront that the Jerusalem planning department announced the approval of a number of new housing units in disputed territory.

Then, when Mr. Netanyahu visited the White House, the press reported that his major prop was a "flowchart" purporting to show that the planning process in Jerusalem was outside of his control or knowledge.  Apparently, he was rebuffed.

Now it's entirely possible that the announcement of the new housing starts was the result of internal Israeli politics.  And it's never been a goal of the Land Use Prof Blog to wade into Middle East politics.  But I can't help but feel a little sympathy with Mr. Netanyahu, if for no other reason than the fact that anyone who wants to build housing in the US must run a regulatory gauntlet so byzantine that the very idea of an explanatory flowchart would be most welcome. 

What I really want to find out more about is, what is the process set forth in this flowchart?  I have tried to do the research several times since this story came out, and I haven't been able to find this flowchart.  I think that if a planning commission process flowchart is going to be a linchpin of global politics, we ought to at least be able to take a look at it!  If you have access to the flowchart please let me know!!

All the same, I'm still intrigued that the leader of a major Western democracy would think to go to a meeting equipped with a land use planning flowchart.  Just goes to show how significant these issues are!

Matt Festa

April 11, 2010 in Comparative Land Use, Comprehensive Plans, Planning, Scholarship | Permalink | Comments (1) | TrackBack (0)

Singer on Original Acquisition of Property

Joseph William Singer (Harvard) has posted Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity, forthcoming in Indiana Law Journal.  The abstract:

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

This piece provides some significant thoughts about the basic theory of property and land use, from one of the leaders in the field. 

Matt Festa

April 11, 2010 in Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sandercock and Lebovits on NY Landlord-Tenant Law for the Transactional Attorney

Margaret B. Sandercock (Goodfarb & Sandercock) and Gerald B Lebovits (Judge, NYC Civil Court & adjunct prof, St. John's & Columbia) have posted New York Residential Landlord-Tenant Law 101 for the Transactional Attorney, forthcoming in Real Property Law Journal, Summer 2010From the introduction:

This article spots some of the most common landlord-tenant issues that transactional attorneys should recognize so that they can assess the proposed purchase, consult with a landlord-tenant specialist if necessary, and take action required at closing. The attorney’s prepurchase research, which may be conducted pre-contract or during a due-diligence period with a right of cancellation after the contract is signed,

should be conducted simultaneously with other due diligence and supplements an engineering report and physical inspection of the entire building.

The article examines several due diligence issues related to land use regulation.  Looks like a good guide for anyone interested in working in the area. 

Matt Festa

April 11, 2010 in Landlord-Tenant, New York, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)