Thursday, June 3, 2010

Land Use and Obesity

This week, I've been fortunate to present at  Download ALSAH.PolicyInstute.Agenda.2010 and this event regarding the link between unsustainable development practices and obesity. 

The gist of my presentations is that land development regulations which induce more walkability and less car centric design generally result in healthier lifestyles.

Conversely, those regs that separate compatible uses and prioritize vehicular use--even in urban settings designed for pedestrian activity, get people off their feet, in their cars, and more out of shape.

The Alabama Department of Public Health will be posting the powerpoints soon so I'll provide a link when they are up.

In the big picture, the more I researched in preparation for these events, the more I became convinced that land use sprawl is more of a obesity factor than I ever believed.

--Chad Emerson, Faulkner U.

June 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 2, 2010

Wiseman on Hydraulic Fracturing and Regulation in Appalachia

Another interesting article from Hannah J. Wiseman (Texas): Regulatory Adaptation in Fractured Appalachia, a symposium contribution forthcoming in the Villanova Environmental Law Review.  The abstract:

America faces a growing energy challenge. We require energy for our every activity, yet we increasingly recognize that there are no easy energy solutions. Reliance upon traditional fossil fuels - many of them imported - jeopardizes our national security and releases harmful emissions, yet renewable energy technologies require high capital investments and have environmental impacts of their own. As we address this challenge and move toward a more sustainable energy future, “bridge fuels” like domestically-produced natural gas offer a near-term compromise between renewables and traditional fossil fuels. A growing quantity of bridge fuel in the form of domestic natural gas is produced from American shales through a process called hydraulic fracturing, and this practice is booming in the Appalachian region. Some residents of this region are now asking how this type of extraction can and should occur while adequately preventing potential harm to their health and their natural resources. This Article investigates how state regulation has adapted to address this concern and argues that regulations should change in some areas; it suggests steps toward state regulatory improvement and briefly explores additional federal options. The Article concludes that improved regulations, in addition to ongoing studies of risk, are important to effectively balance the continued extraction of this essential bridge fuel and the need to address public concerns, as well as to serve as a model for future regulatory transitions in the energy area.

Matt Festa

June 2, 2010 in Environmental Law, Federal Government, Oil & Gas, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 1, 2010

Wiseman on Public Communities, Private Rules

Hannah J. Wiseman (Texas) has posted Public Communities, Private Rules, Georgetown Law Journal, Vol. 98, No. 3 (2010).  The abstract:

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will also highlight their problems, however. Many community consumers are marginally familiar with private covenants and traditional zoning, but they are largely unaware of the relatively new zoning overlays used to form public rule-bound communities. Yet the rules in overlays are extensive, are applied to existing landowners, and are not easily modified to meet changing community needs over time. And covenants, despite offering a more traditional tool for aesthetic control, create their own problems of incomplete consumer notice and barriers to effective modification. This Article will analyze the impact of these problems, as well as a lack of responsiveness to ongoing consumer demands for the maintenance of desired rules, on rule-bound communities’ ability to meet consumer demands for a community aesthetic. It will conclude that rule-bound communities should provide better visual notice of rules and should implement processes that allow for residents to better influence the initial content of rules and how rules are perpetuated or changed.

Matt Festa

June 1, 2010 in Community Design, Conservation Easements, Historic Preservation, Homeowners Associations, Housing, Local Government, Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)

Sunday, May 30, 2010

Guerilla Gardeners

We have posted several times on the movement towards urban agriculture (and chickens) and neighborhood gardening.  But sometimes The Man (and zoning and other land use codes) won't allow it. From the Wisconsin State Journal, Guerilla Gardeners: They leave a garden when no one else is looking.

True “guerrilla gardening” — planting in a public place, where one doesn’t have permission — is difficult to confirm and by nature is secret. It’s also illegal, although the city prefers to educate residents rather than enforce a $500 fine for violating tree planting rules, said George Hank, the city’s director of building inspection.
Guerrilla gardeners have their own code of conduct, said John, the East Side guerrilla gardener who the State Journal is not identifying because he also is a volunteer gardener with the city and does not want to lose that position.
“My thought is always that people not mess with other people’s gardens,” John said. “There are so many places that need attention around this city.”

Matt Festa

May 30, 2010 in Agriculture, Environmentalism, Urbanism | Permalink | Comments (0) | TrackBack (0)

Ely on Stevens, Kagan and Property Rights

Shortly after Justice Stevens announced his retirement, we posted an article by Prof. John Echeverria on Justice Stevens' career legacy in property law, taking a generally positive view.  Last week, Prof. James W. Ely, Jr. (Vanderbilt, law & history) published an op-ed in the Washington Times with a critical view of Justice Stevens' record on property.  From Stevens, Kagan, and Property Rights:

However, in at least one important area of constitutional law--the rights of property owners--Justice Stevens' record fell woefully short of protecting the interests of average citizens.  In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives on individuals. 

On Kelo:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level.  Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development.  The beneficiaries likely will be corporations and others with political clout.  In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

Ben Barros disagrees with Ely's blaming Justice Stevens for "eviscerating" the Public Use Clause, noting that Berman and Midkiff established well the precedent for deference to government in determining what is necessary for the public benefit.  But while Justice Stevens' opinion certainly relied on Berman and Midkiff, I have always thought that was really drove the opinion was less a matter of stare decisis (but useful to cite precedent, especially since Justice O'Connor wrote the opinion in Midkiff), and more of an overall comfort level with the fact that the New London takings were part of a comprehensive redevelopment plan designed by a wide range of government officials and agencies.  

Ilya Somin also blogged Ely's op-ed with some interesting observations, and linked to Ely's 2005 article Poor Relation Once More and his definitive history of U.S. constitutional property rights, The Guardian of Every Other Right.

Ely concludes with a recommendation for the Senate regarding Stevens' nominated replacement:

Hopefully Elena Kagan, Mr. Obama's nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order.  As in many other fields of law, however, Ms. Kagan's record with respect to property rights is a blank slate.  It certainly would be appropriate for senators at Ms. Kagan's confirmation hearing to ask her about her thoughts on this subject.

Matt Festa

May 30, 2010 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Federal Government, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Speaking of Bad Condo Markets...

If you thought my recent post about the Hue development in Raleigh, N.C. was troubling, check out this recent story regarding Las Vegas:

Earlier this month, Houston-based Metrostudy reported that Las Vegas has more than 8,200 condominium units that are sitting empty, including those still vacant in CityCenter.

Murphy said Las Vegas has a 20-year supply of condominiums whose prices are down 60 percent from the peak of the market a few years ago. Some high rises aren’t selling for that much more per square foot than single-family homes, he said.

Our fellow blogger, Prof. Pindell lives in Vegas. Ngai, is it as bad as it sounds from this article?

--Chad Emerson, Faulkner U.

May 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Not a Single Unit. Amazing.

The ongoing land development crash is filled with amazing anecdotes.  I've followed many of them as part of my research and writing.  Recently, though, I ran across one that shocked and awed me more than any other before.

It's the story of a infill mixed-use project that, since it could not obtain enough presales, could not tap into the massive amount of federal monies floating around out there:

Hue wasn't able to get the presales needed for Fannie Mae or FHA approval, something that two of its downtown Raleigh competitors, the RBC Plaza condos and Bloomsbury Estates, have achieved.

Highwoods Properties, the developer of RBC Plaza, has sold 105 of the tower's 139 condos, but just five in the past four months. Bloomsbury has sold four of its 56 units, according to Wake County property records. Hue's units were priced between $147,000 and $388,000. The entire project, including a parking deck, has a tax value of $33 million.


New condo projects have a reservation period in which they accept commitments from buyers before they can actually sell units. Hue frustrated many prospective buyers because its reservation period dragged on longer than expected. The project began selling units only in January, and it offered a variety of perks to get people in the door.

Instead of buying a unit outright, a resident could sign a contract to lease one and live in it until the building reached the presale requirement that made it eligible for federal loan assistance. Buyers were offered a free washer, dryer, refrigerator and parking space.

This is really pretty startling that a project of this size and cost is essentially sitting empty across from Raleigh's city hall.

--Chad Emerson, Faulkner U.

May 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Two by White on Strategic Default

Brent T. White (Arizona) has posted two papers on the topic of strategic default by homeowners.  First is The Morality of Strategic Default.  The abstract:

Responding to those who argue that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this article argues that breaching a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.

An increasingly influential view is that strategic defaulters make a rational choice to default because they have substantial negative equity. This article, which is based upon the personal accounts of over 350 individuals, argues that this depiction of strategic defaulters as rational actors is woefully incomplete. Negative equity alone does not drive many strategic defaulters’ decisions to intentionally stop paying their mortgages. Rather, their decisions to default are driven primarily by emotion – typically anxiety and hopelessness about their financial futures and anger at their lenders’ and the government’s unwillingness to help. If the government and the mortgage industry wish to stem the tide of strategic default, they must address these emotions. 

Because emotions are primary, however, principal reductions may not be necessary. Rather, many underwater homeowners simply need some reason to feel less apprehensive about the financial consequences of continuing to pay their underwater mortgages. One possible way to provide this comfort would be a “rent-based loan program,” allowing underwater homeowners to refinance their entire balances to an interest rate that would bring their mortgage payment in line with the rental cost of a comparable home. Indeed, a rent-based approach would relieve many underwater homeowners’ financial anxiety and likely be enough alone to stem the tide of strategic default.

Matt Festa

May 30, 2010 in Finance, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)