Saturday, May 22, 2010

Schwarz in The Atlantic on Gentrification and its Discontents

Benjamin Schwarz has written a fascinating article in The Atlantic called Gentrification and its Discontents: Manhattan never was what we think it was.  The intro:

MICHAEL SORKIN, AN architect and critic, and Sharon Zukin, an urban sociologist, have each written what they describe as books about contemporary New York City—but that’s putting things far too broadly. Zukin’s Naked City does make forays into the white-hot center of hipness, Brooklyn’s Williamsburg, and to rapidly gentrifying Harlem. But the bulk of her book, and all of Sorkin’s Twenty Minutes in Manhattan, is confined to fine-grained observations of the streets and neighborhoods within roughly 20 blocks of their apartments in Greenwich Village—that is, west to the Village’s Meatpacking District and new Gold Coast along West Street, east to the fringes of Alphabet City, north to Union Square, and south to SoHo and Tribeca. This area today is in every sense rarefied, and for most of its history was in crucial ways set apart from the rest of Manhattan, which to some extent leaped beyond it. Still, the precedent for using the Village to draw lessons and issue prescriptions about New York generally, and indeed urban life writ large, was of course sanctified in 1961 by that doughty urban observer and community activist, Jane Jacobs. She largely formed her conclusions in The Death and Life of Great American Cities—the ur-text for contemporary writing about urban life and the most influential American book ever written about cities—by closely reading the neighborhood life around her house on Hudson Street (about six blocks from Sorkin’s apartment and, by my reckoning, about 10 from Zukin’s; it’s all a bit clubby). . . . 

This article asks us to rethink the basic assumption that the urban life Jane Jacobs describes was really a traditional and organic manifestation.  For Jane Jacobs fans like me this is a really intriguing historical argument.  More from the article:

Inevitably, behind cries of decline is a conception, conscious or not, of a time and situation that was better—when the city had a soul. In her invocations of laundries and shoe-repair and hardware stores, Zukin betrays a vague nostalgia, shared by many chronicles of New York (Robert Caro’s The Power Broker, Ric Burns’s documentary New York, Pete Hamill’s memoirs), for the Old Neighborhoods characteristic of what was once an overwhelmingly working-class city. . . . [Noting that the Triangle Shirtwaist fire was only one generation before Jacobs, it] means that even hazy melancholy for the New York of regular Joes with lunch pails returning after a good day’s work to their neighborhoods of kids playing stickball and corner drugstores dispensing egg creams can only evoke scenes pretty much limited to the years of the LaGuardia administration.

Stickball. That cracks me up.  When I lived in Tennessee, I had a friend who loved to insist (with complete knowledge and humor) that because I was from "New York" (well upstate in a suburb of Albany, actually), my childhood must necessarily have been replete with games of stickball in the alley, scampering around with mischievous moppets, stealing apples from the fruit carts, and so on.  But this article's challenge to the Jacobs thesis of urban neighborhood decline is quite serious: 

Thanks to the profound influence that The Death and Life of Great American Cities has exerted, the West Village circa 1960 has come to epitomize—really to be the blueprint for—the urban good life. But in its mix of the new and the left over, in its alchemy of authenticity, grit, seedy glamour, and intellectual and cultural sophistication, this was a neighborhood in a transitional and unsustainable, if golden, moment. Which meant that it was about to lose its soul. 

It's a great article, challenging to many of the assumptions that people have today about the basis for the urban good life, and you really should read the whole thing.  h/t to Matt Berger.

Also, it's worth noting that this article is part of The Atlantic's special report, The Future of the City.  Lots, lots, and lots of interesting stuff there.  Do check it out.  

Matt Festa

May 22, 2010 in New Urbanism, New York, Planning, Politics, Urbanism | Permalink | Comments (1) | TrackBack (0)

Federal Eminent Domain on the Border?

In another example confirming my belief that every legal and policy issue ultimately has land use implications, here's an article that touches on border control, the federal stimulus package, agriculture, and eminent domain.  From the northern border: Vermont farmer draws a line at US bid to bolster border: Homeland Security threatens to seize 4.9 acres.

FRANKLIN, Vt. — The red brick house sits unassumingly on a sleepy back road where the lush farmlands of northern Vermont roll quietly into Canada. This is the Morses Line border crossing, a point of entry into the United States where more than three cars an hour constitute heavy traffic.

The bucolic setting of silos and sugar maples has become the focus of a bitter dispute that pits one of America’s most revered traditions — the family-owned farm — against the post-9/11 reality of terror attacks on US soil.

The Department of Homeland Security sees Morses Line as a weak link in the nation’s borders, attractive to terrorists trying to smuggle in lethal materials. The government is planning an estimated $8 million renovation here as part of a nationwide effort to secure border crossings.

It intends to acquire 4.9 acres of border land on a dairy farm owned for three generations by the Rainville family. Last month, the Rainvilles learned that if they refuse to sell the land for $39,500, the government intends to seize it by eminent domain.

The Rainvilles call this an unjustified land-grab by federal bullies.

Would it make more sense to close such a little-used facility, whether on fiscal grounds or to avoid resort to federal eminent domain?  

Matt Festa

May 22, 2010 in Agriculture, Eminent Domain, Federal Government, Financial Crisis | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

2010 Endangered Places List

The National Trust for Historic Preservation has released its annual list of endangered places.  The list is varied and reflects the expanding nature of preservation.  For example, it includes Connecticut's Merritt Parkway and Virginia's Wilderness Battlefield, which may be the site of a Wal-Mart if litigaton by local residents fails.  Click here for a report by Brian Williams, and here for a link to the full list at the National Trust.

Will Cook, Charleston School of Law

May 20, 2010 in Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Baltimore Public Works Museum

Earlier this month I was in Baltimore for the AALS Clinicians' Conference.  The conference itself was a really fantastic opportunity to learn and be with my fellow clinicians. This year the setting was also quite spectacular - we were at the Renaissance Hotel right in the Inner Harbor.

While walking in the area I've happened upon a little gem, previously unknown to me.  The Baltimore Public Works Museum is a fantastic historic building that is still part of the city's water and sewer system.  Unfortunately the museum is currently closed to the public, due to budget cuts.  I hope to visit it on a future trip to Baltimore, because I'm sure it's quite fascinating (at least to a land use geek like me).

Jamie Baker Roskie


May 20, 2010 in Architecture, Conferences, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 19, 2010

The Community Land Trust Reader

From the folks at the National Community Land Trust:


A new collection of essays, assembled for the first time, traces the roots, evolution, and prospects of the community land trust -- an innovative model of affordable housing shaped by the likes of Henry George and Ebenezer Howard, and flourishing today in hundreds of U.S. communities.

The Community Land Trust Reader, published by the Lincoln Institute of Land Policy and edited by John Emmeus Davis, brings together the seminal texts that inspired and defined the community land trust movement.  The essays - many of which have never before appeared in print, and others written expressly for this volume -- trace the intellectual origins of an eclectic model of tenure that was shaped by the social theories of Henry George, Ebenezer Howard, Ralph Borsodi, and Arthur Morgan, and by social experiments like the Garden Cities of England and the Gramdan villages of India.

For more information about The Community Land Trust Reader, go to

Sounds pretty interesting, although if I bought it I'd have to add it to my huge stack of professional reading that never gets done...

Jamie Baker Roskie

May 19, 2010 in Land Trust, Scholarship | Permalink | Comments (0) | TrackBack (0)

New Partners for Smart Growth - Call for Submissions

From Roberta Lane at EPA:

The Call for Session Proposals process for the 10th Annual New Partners
for Smart Growth Conference is open until June 30, 2010. To submit a
proposal, visit

I am very intrigued by the theme, which is "Equitable Development." From the submission form:

We strongly we encourage proposals that cover any of the thematic categories listed below, as all are extremely important to the conference program. That said, we are very interested in proposals that enhance our knowledge of and develop new approaches to address the following topics: (1) how to finance smart growth (for example: making the business case for smart growth, public-private partnerships, public infrastructure financing, and innovative private investment strategies), (2) capacity building for local governments and grassroots organizations implementing smart growth in their communities, and (3) equitable development and environmental justice.  Please note that while the list of categories includes “Equitable Development” as a theme, ALL sessions should explore equity and public health considerations.

Should be interesting, plus it's in nearby (for me) Charlotte, NC, next February.

Jamie Baker Roskie

May 19, 2010 in Conferences, Development, Environmental Justice, Federal Government | Permalink | Comments (0) | TrackBack (0)

Shared Parking as a Solution for Mixed-Use Neighborhoods

This blog post is by guest blogger and UGA 3L (and recent Land Use Clinic alumna) Catherine Mattingly.

For a project in the Land Use Planning course I took this semester at UGA Law, I researched shared parking in mixed-use areas throughout the country and tried to apply the concept to a neighborhood in Athens, Georgia.  Shared parking allows multiple businesses—or even entire neighborhoods or districts—to combine parking spaces in a way that benefits both the customers and the businesses.  This strategy can be used to either alleviate an existing parking shortage, or to require fewer spaces in building a new development.  I will give a bit of background on the area I studied within Athens, Georgia, and then offer some potential solutions for this dynamic problem in the area.

The Five Points area in Athens, Georgia is a small-scale mixed-use area in this historic college town.  Restaurants, clothing stores, coffee shops, even a grocery store, are located along South Lumpkin, which is the main street of this historic area that takes its name from the five-way intersection at the corner of Lumpkin and Milledge.  Next to this cluster of shops lie residential neighborhoods.  The district is in theory the perfect place to park one’s car and spend the rest of the day running errands, meeting with friends, attending yoga class, etc.  Because these stores are within walking distance of one another, there is really no reason to drive from place to place.

However, you may have noticed that I said “in theory.”  Currently, parking in one place and spending the day shopping throughout Five Points isn’t possible.  With the exception of a few informal parking agreements between neighboring store owners and a few spots lining Lumpkin Street (which only permit limited time parking), the general rule in the area is that a store patron must be parked in the lot of the respective business he or she is visiting.  A frequent visitor to Five Points, I have been burdened by this rule many times.  When my Land Use Professor Christian Turner spoke of this problem as a potential paper topic I jumped on board, wanting to learn more about a problem that has hindered the overall appeal of the area.  While the solution of shared parking is simple, creating a successful strategy for an entire district that will be adaptable as businesses change over time can be extremely difficult.  One must consider the current local ordinances and their restrictions on parking, the local Comprehensive Plan, the total number of spaces as well as potential for new spaces, peak hours for the varying businesses, and the general overall character of the area.
 After researching shared parking generally, I emailed most of the store owners in Five Points asking for their thoughts on the matter.  Overall, most of the owners and managers with whom I spoke supported shared parking, provided it supplied enough spots for their individual use.  A few owners shared that they felt their business suffered at certain times of the day because there was simply no available parking.  After interviewing these people, I looked for case studies of shared parking strategies that had already been implemented or studied throughout the country.  I found that the primary consideration in the success of a shared parking strategy is whether there are different peak parking hours between stores.  The significance behind this factor is that if businesses have varying busy hours, then there are likely spaces available at one nearby store when another is crowded.  Therefore, by simply making agreements with other businesses to share spaces during certain times of the day, available spots can be increased without having to actually add any additional spaces.  These private agreements can exist in the form of revocable licenses, or appurtenant easements or covenants could also be used.

While agreements such as those mentioned above can be achieved by simple agreements between business owners, a successful district-wide shared parking solution likely calls for control of all available parking by the city.  To achieve this, I suggest creating an overlay district.  This district would eliminate the need to follow any current parking restrictions in the Athens-Clarke County Code.  In addition to adding additional limited-time parking in the area, a parking deck could also be constructed.  Alternatively, a larger parking lot could be created by combining many of the smaller lots located behind the old homes that have been turned into local businesses.  To give the city the right to control parking, each owner could deed his spaces to the city.  Alternatively, a temporary lease agreement could be implemented, but this could hinder construction of permanent changes such as the large lot or deck.  These parking options could be geared not just toward immediately neighboring business, but to patrons in the entire area.

In addition to providing additional available spaces to store patrons, shared parking has other benefits.  Changing the character of parking in the area could help to change the nature of the district as a whole.  For instance, the area would necessarily become more pedestrian-friendly, as visitors are expected to park their cars and walk throughout the district.  The city could also take this opportunity to add more green space to the area.  Thus, establishing shared parking would assist in making visiting the area not only more convenient, but also safer and more aesthetically pleasing.  As space becomes an increasingly important commodity, older districts can retrofit their communities to increase the convenience and attractiveness of the area.  Increased revenues will hopefully follow as patrons find these stores easier to visit.

Overall, in researching this issue, I have been reminded of how dynamic local land use issues such as parking truly are.  Implementing shared parking will certainly be difficult, but the ability of the area to adapt to change could be crucial for its success, especially in its competition with downtown Athens.

First, I'd like to give props to my UGA colleague Christian Turner for having his Land Use Planning students work on practical projects in the doctrinal class.  Second, having read and considered Catherine's paper I congratulate her on excellent work on applying land use concepts to a real, local problem.  I shop at the stores and practice at the yoga studio she mentions, so I also struggle with the parking issues.  However, I hadn't considered the lots behind the old houses retrofit as shops as a good joint parking lot, but it really is.  I hope to promote Catherine's solution locally as a way to create a better pedestrian environment in what should be one of Athens' truly walkable neighborhoods.

Jamie Baker Roskie

May 19, 2010 in Community Economic Development, Georgia, Local Government, Parking, Pedestrian, Planning | Permalink | Comments (0) | TrackBack (0)

The City as Museum

"But if the big city is largely responsible for the invention and public extension of the museum, there is a sense in which one of its own principal functions is to serve as a museum:  in its own right, the historic city retains, by reason of its amplitude and its long past, a larger and more various collection of cultural specimens than can be found elsewhere.  Every variety of human function, every experiment in human association, every technological process, every mode of architecture and planning, can be found somewhere within its crowded area."

Lewis Mumford, "The City in History," quoted in Anthony M. Tung, Preserving the World's Great Cities:  The Destruction and Renewal of the Historic Metropolis 413 (2001).

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

Tulane's Environmental Clinic Under Attack

Recently I posted about an attack by the Maryland legislature on the environmental clinic at University of Maryland.  Now the environmental clinic at Tulane is under similar fire.  Here's a quote from a recent Times-Picayune article (shared with the environmental clinicians by Tulane Environmental Law Clinic Director Adam Babich) :

Since 1989, third-year Tulane law students at the clinic have represented clients in lawsuits against chemical companies, landfills, energy companies and other industries. Among other issues, the cases have dealt with wetland protections, zoning and permitting issues, and violations of environmental regulations on clean air and water. LCA chief Dan Borne and Sen. Robert Adley, R-Benton, say those torts are job killers, and they cast Adley's Senate Bill 549 as a reasonable way to put a stop to excessive litigation damaging to the Louisiana economy.


As it was introduced, Adley's bill would block university law clinics at any school that receives state money from suing a government agency or representing a client who is suing a private defendant for monetary damages. Adley said he plans to propose an amendment today that would limit the restrictions to environmental law clinics, effectively limiting the bill to Tulane.

As I recently e-mailed Adam, I guess it's good when your opponents are really clear that they want to take you out.  It does seem that this bill doesn't have much political traction, particularly in light of the Gulf Oil Spill:

"I think it's bad public policy to single out a group like this," Sen. Danny Martiny, R-Kenner, said. "It amazes me that the chemical industry would pursue this when we've got all that oil out in the Gulf."

Sens. John Alario, D-Westwego, A.G. Crowe, R-Slidell, and Nick Gautreaux, D-Abbeville, noted that their districts include fishers and others who have been affected by industry in the past or could have claims in the wake of the oil spill, though many of those clients likely could hire private-sector attorneys on contingency. Alario and Gautreaux said they oppose the bill. Gautreaux said, "Maybe the attorney general should hire Tulane law students to sue BP. If they can scare the chemical association this bad, then they can scare BP, TransOcean and Halliburton."

Crowe said he "has a real dilemma" and is generally reticent about a proposal that could potentially limit his constituents' access to adequate counsel.

Commerce Committee Chairwoman Ann Duplessis, D-New Orleans, cited "the poor people in my district" who have, with the help of the Tulane clinic, beaten back attempts to locate landfills in eastern New Orleans.

The closest to a "yes" vote the LCA has gotten so far is from Sen. Mike Michot, R-Lafayette, who said he's going to listen to both sides. Michot said he's heard from constituents who were represented by Tulane students. But, he said, "There has to be a balance. ... I'm going to listen to both sides."

The Clinical Legal Education Association and the Society of American Law Teachers have both come out against this bill, as has Tulane's president.  I'll post an update after the hearing.

Jamie Baker Roskie

UPDATE: The legislature effectively killed the bill through total lack of support. Read the story here.

May 19, 2010 in Environmental Law, Oil & Gas, State Government, Teaching | Permalink | Comments (0) | TrackBack (0)

The 24 Hour Service Project Charrette...

...following up on Matt's post regarding this year's big CNU conference in Atlanta, I'll be heading over this afternoon to present at the SmartCode Intensive part of the event.

I'm traveling with Montgomery's planning director, Ken Groves, and a handful of other sustainability experts who have been here in Alabama's state capital for the 24 Hour Service Project Charrette--a unique event that is part of the official CNU program.

You can learn more about it here, here, and here.  By the way, it sure is nice to have a mandatory form-based zoning code in place when planning and designing this type of revitalization effort.

If you're at CNU this week, please stop by the Montgomery booth in the Exhibit Hall and check things out.

--Chad Emerson, Faulkner U.

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

National Preservation Month: Old is the New Green

Did you know that May is National Preservation Month?  The National Trust for Historic Preservation is sponsoring this campaign; their 2010 theme is "Old is the New Green."  From their website:

The theme for 2010’s National Preservation Month this May is Old is the New Green! We know that preservation is good for communities and good for the pocketbook, but in the face of our growing climate crisis, we can also say with confidence that preservation has a significant role to play in fostering development that is more environmentally and economically sustainable. By giving Preservation Month the theme of sustainability, we are hopeful communities and organizations across the country will help us spread the word that preservation is inherently green. When you reinvest in older and historic buildings, live in a historic home, or even become a member of the National Trust for Historic Preservation or your local preservation organization, you support a more sustainable world. Spread the word this May – Old is the New Green!  

Lots of interesting articles, stories, and resources at the website.  Happy Preservation Month!

Matt Festa

May 19, 2010 in Historic Preservation, Sustainability | Permalink | Comments (0) | TrackBack (0)

AALS Mid-Year Meeting on Property

Next month the American Association of Law Schools will have its mid-year meeting in New York, and one of the three primary subject matter workshops this year is the Workshop on Property, June 10-12.  There will be a terrific program focusing on the property law implications of two major issues: the mortgage crisis, and global warming.  Check out the brochure.  From the write-up:

Why Attend? Two major crises in the last few years have exposed deep tensions and pressures on our understanding of property law.  The foreclosure of more than 2 million homes, and the anticipated default of another 6 million mortgages has shaken common notions about the ability of consumers to understand real estate transactions and the terms of their mortgage contracts, posed stark questions about the failure of the law to limit the ability of the market to produce property transactions that created significant principal/agent costs, moral hazards, and externalities, and presented challenging questions about racial disparities in access to prime credit and in the underwriting of troublesome new mortgage products.  Similarly, vigorous debates over the responsibility of industrialized countries to control global warming, the need to protect future generations from the effects of global warming, and the fair allocation of the burdens of reducing greenhouse gases similarly have posed challenging questions about the regulation of risk from activities on private property, the nature of property owners’ obligations to future generations, and the failure of regulation to control externalities from the use of property.  Both crises raise serious theoretical and practical challenges to traditional notions about the comparative advantages of the free market, our ability to craft property laws that limit systematic risk without unduly discouraging innovation, and the continuing inability of the law to prevent racial discrimination, exclusion and exploitation. . . .

Who Should Attend? This workshop should be of interest to teachers of Property Law, Real Estate Transactions, Land Use Law, Environmental Law, Natural Resources, Indian Nations and Indigenous Peoples, Regulation, Financial Instruments, and Law and Economics.  The workshop is designed to benefit property law teachers at all levels of experience.  Our speakers and group leaders will include many of the most prominent and established people in the field, and also a substantial number of newer voices.

The early bird registration deadline is this Friday, May 21.  See the website to register.  Hope to see you all there!

Matt Festa

May 19, 2010 in Climate, Conferences, Environmental Law, Financial Crisis, Mortgage Crisis, New York, Property, Real Estate Transactions, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thomas on the Public Forum Doctrine

David A. Thomas (Brigham Young University) has posted Whither the Public Forum Doctrine: Has this Creature of Courts Outlived its Usefulness?, from 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.

Includes an Appendix: Historical Details on the Emerging Concept: Governmental Immunity Over English Land in the Anglo-Saxon and Norman Periods (pp. 735-743).

Matt Festa

May 19, 2010 in Caselaw, Constitutional Law, First Amendment, Nuisance, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 18, 2010

Congress for the New Urbanism 18: Atlanta

Last week Jamie posted about the "Sprawlanta" video, part of the project American Makeover: An Online Film Series about New Urbanism.  "Sprawlanta" won first prize at last year's Congress for the New Urbanism video competition.

This week, the Congress for the New Urbanism meets in SprawlAtlanta for CNU 18, its annual conference.  The description:

Is New Urbanism the prescription for healthier communities? Increasing scientific evidence suggests that community design -- land use, design character, transportation systems, sustainability, and density -- can promote physical activity and lifelong communities; lower the risk of traffic injuries, obesity, heart disease, and hypertension; improve air quality, affordability, social equity, connectivity, mental health and long-term value; increase social connection, sense of community and healthy food access; and reduce crime, violence and contributions to climate change. Organized with assistance from the Centers for Disease Control and Prevention, the Congress for the New Urbanism 18, "New Urbanism: Rx for Healthy Places," will present new research and innovative techniques for assessing the health impact of land use, transportation planning, and community design decisions -- from fine grained to mega-regional scales. Share the opportunities and challenges of designing and retrofitting communities that make it easier for people to live healthy lives -- CNU's 18th annual Congress in Atlanta, May 19-22, 2010. Preceding the Congress will be certification training, the NextGen Congress and other partner events May 17-18, 2010. For further information, visit .  

Looks like the program has a very interesting lineup of speakers and events, as usual.  If you can make it to CNU 18, send us a report!  

In other CNU news ("CNUse"? . . . sorry . . .), guess which city will be introducing the newest CNU Full Chapter this weekend?  Houston, we have a Chapter!  Board members Andrew Burleson and David Crossley will be also be speaking in Atlanta.  Congrats to CNU-Houston.  

Matt Festa

May 18, 2010 in Architecture, Conferences, DPZ, Food, Georgia, Houston, New Urbanism, Smart Growth, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Harrison on Law Faculty Ethics and Capture.

Recently a colleague shared with me Jeffrey L. Harrison's "Faculty Ethics in Law School: Shirking, Capture, and "The Matrix" in the University of Detroit Mercy Law Review, 2005.

This essay is devoted to the proposition that conditions are ideal
for most law schools to be governed for the benefit of the faculty at
the expense of the welfare of students and others (stakeholders) [FN3]
who expect to be served by the law school. If this practice is
sufficiently broad that it becomes a component of the institution's
norms, two concepts from administrative law become relevant. One is
"self-regulation" and the other is "capture." The analysis is presented
in four steps. In the following section, the concepts of shirking and
capture are explained more fully. Since no employees, including law
professors, are expected to devote 100% of their energy to the
institution, one issue that must be addressed is *398 what constitutes
shirking. This section also suggests that faculty shirking, if it
occurs, stems primarily from a lack of respect for those whom the law
school serves.

Section II addresses the second step. Having described shirking and
capture in the law school context, the issue is whether law schools are
susceptible to this behavior. An argument is made that law schools are
uniquely vulnerable to shirking and capture. In Section III, anecdotal
[FN4] as well as some empirical evidence is offered suggesting that
shirking and capture are not merely possible, but do occur. In fact,
law schools have entered into an era of expensive self-promotion which
is itself shirking, encourages faculty shirking, and may conceal
institution-wide shirking. In many respects, this behavior may be
consistent with evolving social trends in which image is more valued
than reality. Finally, a proposal is made to increase the
accountability and transparency of law school decision-making by
exposing it to what I identify as "stakeholders."

I'm posting this partly because many of this blog's readers are law professors, but also because this concept of shirking seems to me to apply equally in local politics, including land use matters.  Sometimes it seems necessary to avoid pushing good governance when it is necessary to maintain a relationship over time with political actors at a local level.  This is an issue for all of my clients, whether they be governing officials, staff, or stakeholders.  It's an interesting issue to raise with students when trying to formulate policy that will actually be adopted and implemented.

Jamie Baker Roskie

May 18, 2010 in Local Government, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

Patashnik on Physical Takings, Regulatory Takings, and Water Rights

Josh Patashnik (JD Candidate, Stanford) has posted Physical Takings, Regulatory Takings, and Water Rights, forthcoming in the Santa Clara Law Review (2010).  The abstract:

Alleged takings of property are divided into two broad categories: physical takings claims, which are categorically subject to compensation, and regulatory takings claims, which are analyzed under the multi-factor Penn Central test and rarely result in compensation being paid. This Article addresses the question of whether alleged takings of water rights should be treated as physical or regulatory takings. It is an increasingly salient question in the West, where growing conflict between federal environmental laws and appropriative water rights has resulted in a proliferation of takings claims over the past decade. Because whether a claim is analyzed as a physical or a regulatory taking tends to be dispositive of the question of whether compensation must be paid, the legal issue is a critical one: millions of dollars and control over the region’s most precious natural resource are at stake. 

This Article is the first to comprehensively assess the merits of all the major rationales that have been offered for treating alleged takings of water rights as either physical or regulatory. Past scholarship has focused on just one or two of these rationales, usually in the context of a particular case or fact pattern. This Article takes a broader look and offers novel arguments demonstrating why there are serious conceptual problems with all of the major rationales that have been offered so far, on both sides of the debate. The thesis is a particularly timely one, since the Federal Circuit recently issued its decision in Casitas Municipal Water District v. United States, its first foray into this area and one of the most extensive judicial treatments of the issue offered to date. While the Article discusses the holding and implications of Casitas in detail, it also seeks to go well beyond that case and offer a broader thesis about how courts should treat alleged takings of water rights. My basic contention is that while water rights takings cannot fit straightforwardly as either physical or regulatory takings under current doctrine, treating them as physical takings – that is, applying a categorical takings rule requiring compensation when the government restricts any exercise of water rights otherwise permissible under background principles of state property law – is the most sound approach.

Matt Festa

May 17, 2010 in Scholarship, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Dehring & Depken on Watershed Regulation

Carolina A. Dehring (Georgia--Dept. of Insurance, Real Estate, Legal Studies) and Craig A. Depken (North Carolina--Charlotte, Business Admin/Economics) have posted Sharing the Burden of Water Supply Protection, in Regulation, Vol. 33, No. 1, pp. 36-40, Spring 2010 .  The abstract:

North Carolina law requires local governments to adopt zoning ordinances and land use restrictions for watersheds that feed water supplies. Watershed protection ordinances often contain minimum lot size restrictions that constrain development density in the watershed. This article examines vacant land prices in the Buncombe County, NC, Ivy River watershed before and after one of these ordinances was implemented in order to determine its effect on land prices. Its findings suggest that costs of watershed development restrictions are borne primarily by those vacant land owners in the watershed for whom the development restrictions make land subdivision infeasible. Conversely, property owners whose water supply is protected by these ordinances experienced an increase in property values. This suggests a transfer could be made that would compensate property owners harmed by this regulation.

Matt Festa

May 17, 2010 in Environmental Law, Local Government, Scholarship, Sun Belt, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Alexander on Wind Energy in Texas

Alan J. Alexander (JD Candidate, Michigan) has posted The Texas Wind Estate: An Argument for the Recognition of the Wind as a Natural Resource and a Severable Property Interest.  The abstract:

As a renewable resource, the wasteful practices in the development of wind energy raise different concerns and come in different forms than waste in the oil and gas industry. Nonetheless, waste of the wind is no less harmful than the waste of oil if the underlying policy goal of the state is to maximize the use of its energy resources. To maximize the use of the state’s energy resources, the state needs the power to regulate the wind to mitigate wasteful practices, and landowners need a property interest that they can market or exploit and that the courts can recognize and protect. Yet, it is unclear if the state has full regulatory power over the wind, or if wind ownership is incident to land ownership. Thus, to address these issues will require the resolution of at least three legal questions, the answers to which are essential to the course of development of wind energy in the state of Texas.

The first question is whether the wind is considered a “natural resource” like oil or percolating water, such that the legislature can pass laws to regulate it under Article XVI, Section 59 of the Texas Constitution. The next question is whether the wind is subject to ownership in the state of Texas. The wind blowing over one’s land could be subject to ownership in Texas under common law in a manner analogous to the theory of percolating water, a theory of ferae naturae, a unified fee theory of ownership, or surface water law. The final question that must be answered is whether a landowner’s interest in the wind that flows over his land is severable from the surface estate. Despite the lack of legislative and judicial guidance on this question, wind leases in Texas are typically written as if wind rights are severable. Yet it is unknown if Texas courts will recognize the severability of a wind estate. 

This Note argues that the Texas Legislature should pass laws clarifying that the wind is a natural resource, and that in order to promote “[t]he conservation and development” of the wind as a natural resource, the legislature should statutorily recognize wind rights that are a severable interest in land ownership. Part I offers a brief comparison of the early wasteful history of the oil and gas industry in the state of Texas with the early development of the Texas wind industry, and discusses the problem of waste of the wind. Part II addresses whether the wind is a natural resource, the legal theories that could support a property interest in the wind, and the debate as to whether those wind rights should be a severable interest. Part III lays out the argument in support of the Texas Legislature enacting laws to clarify that the wind is a “natural resource” under the Texas Constitution, that there is a recognized property interest in the wind, and that the interest is severable. The Note concludes by summarizing the necessity of clarifying wind energy law, and the benefits of doing so for the development of wind energy in Texas.

Matt Festa

May 17, 2010 in Environmental Law, Property Theory, Scholarship, State Government, Texas, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Sunday, May 16, 2010

The Accidental Landlord...

Back from Korea. And, I'm more and more curious about this continued growth in the number of unintended landlords:

Like many homeowners in the housing downturn, Amaya became an unintentional landlord by renting out a property he once hoped to sell. How many homeowners are in this category is difficult to know.

Anecdotally, realty agents say it is more common, and more competitive, than ever. As home sales have stalled in recent years and foreclosures have risen, homeowners who need to move on and those who have inherited property are turning to renting to help cover costs.

One of the main issues that has piqued my interest as the summer progresses and turns into fall (which, in turn, means the return of Property I and Landlord/Tenant/Leasehold estates) is how legally prepared these homeowners are for becoming landlords.

Issues like liability, insurance, business licenses, LLC/sole proprietor/corporation all can come into play when you start engaging in the business activity of leasing (even if just one unit).  Many times, I've noticed property rental companies handling these issues but the sense around here seems to be that many people are trying to avoid even that cost because funds are so tight.

So, I'm interested in learning more (even if just anecdotally) on how prepared homeowners are for entering the business world of being a landlord.  Email me at if you have any good input.

--Chad Emerson, Faulkner U.

May 16, 2010 | Permalink | Comments (0) | TrackBack (0)