Saturday, May 1, 2010
Keeping on track with the Seoul-focus of my posts, one thing I noticed today is that they have an extensive underground shopping mall system. I know that Houston and other places (such as the D.C. area) also have large chunks of commercial use buried underground.
My question is this: how does the zoning work for that? Is the surface zoning for a parcel distinct from the subsurface zoning?
--Chad Emerson, Faulkner U.
Well, I spent almost 14 hours today walking the streets and alleys of Seoul, South Korea. It was a pretty amazing experience.
Now, recall: large chunks of Seoul were burned during the Japanese invasion and Korean War in the 1900s. This means that much of the city is less than 70 years old.
During the day, I spent a great deal of time wandering through extremely narrow but extremely effective alleys that would never be close to legal in every single jurisdiction in the United States. What a fascinating experience it was and I'll post pictures as soon as I return to Pohang on Monday.
I have always been a believer that heavy density is not a problem but, rather, can be a very effective form of development--especially when it comes to enabling affordable development within a walkable and compact setting. Simply put: Seoul has confirmed this to me in a real world context.
I'll post the pics soon but, in the meantime, any doubt I had that density represents an inherent life, safety, and general welfare challenge has been dispelled during this trip.
--Chad Emerson, Faulkner U.
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
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- Stephen Miller on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Josh Galperin on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jesse Richardson on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Tekle on Percent-for-Art Ordinances
- Michael Gerrard on Climate Change and Land Use Law
- Touro Law hosts First Annual Conference of the Land Use & Sustainable Development Law Institute
- Abstracts for 6th Annual Colloquium on Environmental Scholarship due May 1
- Space and the City - Special edition of The Economist