Friday, April 23, 2010

Are there "controlled experiments" in land use? Does it matter?

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?

Ken Stahl

April 23, 2010 in California, NIMBY, Planning, Politics, Scholarship, Sun Belt, Zoning | Permalink | Comments (1) | TrackBack (0)

Thursday, April 22, 2010

"An Eruption of Unresilience"

On Planetizen, a blog about how the volcanic eruption in Iceland is requiring people to fall back on other forms of transportation, and do without goods the normally get via air transport.

Fortunately, Europe has a relatively advanced high-speed train network in several nations; were this eruption affecting North America, where rail service has been denuded dramatically over decades and new investments in high speed rail are only now being planned, the conditions would be more chaotic by several magnitudes.

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.

For their part, supporters of rail can also look at the eruption for something else: an alternative vision for urban and intercontinental life. With air traffic absent from the sky – and the harried business schedules it makes necessary – many people are finding that the eruption has yielded a silver lining. Doug Saunders of the Globe and Mail finds that London has fallen “strangely, peacefully quiet” as the constant roar of jets has ceased, while others are rediscovering the wonders of leisure time, renewed friendships and unhurried urban sight-seeing. In the absence of exotic imported food, grocery chains are once again turning to British suppliers, demonstrating the need for viable regional agriculture. 

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

April 22, 2010 in Globalism, Transportation | Permalink | Comments (0) | TrackBack (0)

Off to Korea...

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

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.

April 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 21, 2010

Pils on Property, Dignity, and Growth in Urbanizing China

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:

The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that certain economic theories of property rights are consistent with discrimination and should therefore be rejected. A further conclusion is that we must reconsider the claim that property rights are desirable because they serve economic growth. The discussion here contributes to an understanding of property in terms of dignity, rather than wealth.

Matt Festa

April 21, 2010 in Agriculture, Comparative Land Use, Development, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Pils on Peasants' Struggle for Land in China

Another newly posted comparative land use article is from Eva Pils (Chinese University of Hong Kong): Peasants' Struggle for Land in China, in MARGINALIZED COMMUNITIES AND ACCESS TO JUSTICE, pp. 136-160, Yash Ghai and Jill Cottrell, eds., Routledge, 2009.  The abstract:

Tens of millions of Chinese peasants have been affected by the loss of their land in the past two decades. This has given rise to many disputes, which in many cases have culminated in physical resistance to land takings and evictions. Wrongful takings have been among the factors preventing the development of a sound law on land tenure and property rights. The principal cause of the phenomenon of land grabs is China’s rapid urbanization, estimated to see the migration of hundreds of millions more Chinese people into urban areas within the next few decades. To handle the land disputes in rural China is an important challenge faced by Chinese society. If they are not handled well, the resulting protests may ultimately lead to major social and political upheaval. This paper provides a brief overview of China’s land rights and land tenure system, and of the legal status of its peasants today. It describes how expropriations happen in rural China, and describes avenues of redress and forms of protest and resistance chosen by the peasants in such cases. Increasingly explicit defiance of the written law that provides a basis for land grabs underlines the urgent need for fundamental changes of the current property regime.

Matt Festa

April 20, 2010 in Comparative Land Use, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Texas Sprawl Goes Out With a Bang

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.  

Once the last traces of Texas Stadium are cleared away this summer, Irving intends to dust off plans drafted 10 years ago to transform the Cowboys’ former home and the surrounding acreage into the densest, most walkable neighborhood in the Dallas-Ft. Worth Metroplex outside of downtown Dallas. An extension of the Dallas Area Rapid Transit (DART) Orange line is slated to run through the stadium footprint on its way from downtown to Dallas-Ft. Worth (DFW) International Airport. . . . The stadium site is the next piece in its urban puzzle.

That piece has three owners -- Irving, the neighboring University of Dallas, and Southwest Premier Properties, a private developer -- whose holdings comprise 468 acres. The plans the three chipped in for 10 years ago (and resulting zoning) call for things like four- or five-story apartment blocks with ground floor retail rather than single-family homes. (The Greater Irving Las Colinas Chamber of Commerce tossed some renderings up on its Web site Monday. “’Urban-suburban,’ is a phrase we’ve been using a lot lately, says Maura Gast, the executive director of Irving’s Convention & Visitors Bureau, referring to the notion of urban densities in a suburban setting. “Everywhere the DART is going is driving more density. The market will support it; developers have started jockeying along that path.” Where the stadium once stood, Gast would like to see something like Chicago’s Millennium Park -- at least she has the acreage.

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.  

The glittering towers featured in the opening credits of Dallas -- one pair seemingly clad in gold leaf, another as black and viscous as an oil slick -- lie not in Dallas proper, but in the remnants of El Ranchito de las Colinas, the 12,000-acre “Little Ranch of the Hills.” The same year DFW opened just west of it in 1973, owner Ben Carpenter unveiled his master plan for a wholly-owned-and-operated city carved from those mesquite-shrouded hills -- the largest urban development in the country. Before a single plot of land was sold, he ordered the dredging of lakes and canals, stocked them with gondolas, and ran a monorail overhead. "It is Disney World for the affluent," Texas Monthly reported in the 1980s.  [paging Chad Emerson!]  "In fact, when executives from Disney World visited the development a few years ago, one of them commented that it was a shame ol’ Walt couldn’t have lived to see the real thing."

What’s most interesting about Irving’s plans to add density in its last undeveloped corner is the tacit admission that Las Colinas’s gold-plated office parks and single-family homes are no longer enough. "The piece that has always been missing from Las Colinas is the human density that’s missing on weekends and at nights," says Gast. The reason for adding that piece is an eminently practical one -- it’s what those corporate tenants, their workers and developers all want. Irving is embracing transit-oriented development because it thinks it can make money doing it.

Matt Festa

April 20, 2010 in Density, Local Government, Planning, Redevelopment, Smart Growth, Sprawl, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Keep Portland Precious?

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.

The locals, in fact, enjoy feeling odd: “Keep Portland weird”, say bumper stickers on the city’s cars, which all seem to be hybrid-electric vehicles. “Keep Portland sanctimonious,” mumble a few contrarians, while others savour the irony that Portland had to steal the slogan from Austin, Texas. But on the whole, Portlanders not only love their city but believe that it is, and ought to be, a model for the rest of America.

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

April 19, 2010 in Density, Development, Housing, Planning, Sprawl | Permalink | Comments (0) | TrackBack (0)

Stop the Beach Forum at Florida State

From Robin Kundis Craig at Florida State:

I know that many of you are interested in the Stop the Beach Renourishment case currently pending before the U.S. Supreme Court (the "judicial takings" case).  On April 7, 2010, the Florida State University College of Law hosted our Spring Environmental Forum on this case, and the speakers included lawyers who had argued the case before the Court.

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

April 19, 2010 in Beaches, Coastal Regulation, Environmental Law, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)

Detroit's Latest Open Space Energizes City

Detroit's "official gathering place," a 2.5 acre green space (Martius Park) in a troubled city center, recently received the Urban Land Institute's Open Space Award, reminding us of the importance of the public realm as a factor of vital cities.  Click here to learn more.  For land use experts and planners, Detroit's latest attempt to bring back its urban corps also serves as a reminder that incorporating smart urban spaces as part of a land use plan makes good business sense, too.  It is expected that the revitalized park will generate approximately $700 million in nearby development, including shopping, cafes, retail outlets, and a corporate headquarters for Compuware. 

Will Cook, Charleston School of Law 

April 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Schindler on LEED and Municipal Adoption of Private Green Building Standards

Sarah Schindler (Maine) has posted Following Industry's LEED: Municipal Adoption of Private Green Building StandardsFlorida Law Review, Vol. 62, pp. 285-350, April 2010.  The abstract:

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts of buildings, nor do they provide any assurance that those standards were created through a legitimate process. The Article concludes by offering an alternative approach, suggesting that municipalities should instead enact green building ordinances that have been promulgated by public governmental bodies, rather than private, industry-based organizations, and done so locally, taking into account specific local building-related and environmental concerns.

Matt Festa

April 19, 2010 in Development, Environmentalism, Green Building, Local Government, Scholarship | Permalink | Comments (2) | TrackBack (0)

Van Erp on the European Union DCFR and Property Law

Sjef J.H.M. Van Erp (Maastricht) has posted DCFR and Property Law: The Need for Consistency and Coherence, in COMMON FRAME OF REFERENCE AND EXISTING EC CONTRACT LAW, 2nd. Rev. Ed., pp. 257-269, R. Schulze, ed., Munich: Sellier. European Law Publishers, 2009.  The abstract:

The EU Draft Common Frame of Reference (DCFR) contains three books on property law. In this article it is examined whether the final version of the DCFR (the so-called "political CFR") should inlcude these books on property law. It is submitted that harmonisation of contract and tort law without also harmonising parts of property law will not be feasible.Furthermore, it is proposed that mortgage law should be added.

Matt Festa

April 19, 2010 in Comparative Land Use, Mortgages, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 18, 2010

Direct Democracy Replacing the Planning Commission?

Direct democracy takes control of land use decisions? That may be the case if an upcoming ballot measure in Florida passes: November the stakes will get a lot higher for the Sunshine State, with a ballot proposal known as Amendment 4. The measure, in 54 simple words, would dramatically change the state's politics by giving more power to voters and, with its focus on direct democracy, would make Florida feel a lot more like California.

The proposal would put many decisions about land use directly in the hands of the voters. "Before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan," it says, "the proposed plan or amendment shall be subject to vote of the electors of the local government by referendum."

The door would open to thousands of local votes on a host of issues - from parking lots to nature preserves. That means a state where the politics are already charged could get a lot more intense and be headed toward some bigger changes.

Okay, it would be easy to start this post with a snarky comment or joke about the Sunshine State's (in)ability to administer votes and elections (and, with a first name like "Chad", trust me, I've heard them all).

But that would be too easy.

Instead, I'll play it straight on this one because its a very tricky issue.

First, if passed, Amendment 4 could be a real challenge to administer in terms of timing and cost. How many jurisdictions could effectively organize these votes in a timely way for such often narrow issues like comp plan amendments?

Second, even if they could, would that be a good thing? After all, land use issues are notoriously emotion-driven--especially when compared to other development regulations (think of it this way: when's the last time you heard about protests over a city's building or traffic engineering code?).

Now, I'm a big proponent of local decision-making as opposed to attempts to uniformly apply standards on a large scale that misses the many nuances (such as topography) and other local conditions facing land use in specific areas. Yet, I've also been to enough public hearings and meetings to realize that Amendment 4 could be used as a tool to inject even more politics into the process.

In many ways, it could be a NIMBYs dream come true.

So, I'll vacillate on this one a bit and suggest that the concept may be solid but the practical application and administration of the idea is fraught with potential peril. A more prudent course might be to try the approach in a limited number of small counties as a test case for how Amendment 4 would really work in real life.  If that doesn't happen, in just a few years, Floridians may recount Amendment 4 as a good theory but a inefficient practice.

--Chad Emerson, Faulkner U.

April 18, 2010 | Permalink | Comments (1) | TrackBack (0)