Friday, January 22, 2010
This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.
For whatever reason, the topic of regulating density seems to be one of the most understood areas of land use law. Too often, the simplistic notion that more density is generally bad is employed in a knee-jerk way. In fact, just the opposite can be true.
Increased density can actually be more sustainable if the density is built in an organized manner. For instance, some sustainable strategies such as transit-oriented development are rarely possible at low densities.
That's why this website from the Lincoln Institute of Land Policy is especially helpful.
Based on the great book, Visualizing Density, the website provides a variety of tools that demonstrate how density is not as simple as more/less and bad/good.
I especially recommend taking the density "quiz".
--Chad Emerson, Faulkner U.
Wednesday, January 20, 2010
John C. Peck (Kansas) and Christopher L. Steadham (Kansas) have posted Land Description Errors: Recognition, Avoidance, and Consequences. The abstract:
Legal descriptions of land are used in many legal documents, including contracts, deeds, mortgages, and others. The article first describes several commonly used description methods, including the metes and bounds, U.S. Government Survey, plat reference, and surveyor's or angular description. A suggested method of drawing descriptions is provided. Many types of errors can occur in legal descriptions. Errors can be made because the description is too informal, is ambiguous, or contains mistakes in numbers. Sometimes errors are made when the description is valid in and of itself, but is not the one intended by the parties. Courts have devised canons and aids in construction of land descriptions that contain patent or latent errors. When errors are made, several parties may be adversely affected, including buyers and sellers, mortgagors and mortgagees, lawyers, and land surveyors. For lawyers, errors can implicate both legal and professional ethics violations. Surveyors may be liable in malpractice. The article concludes with some suggestions on methods to avoid making errors in land descriptions.
We've blogged before about land use legal developments in Denver, particularly about its movement toward a comprehensive reform of its zoning code to a form-based code along the lines of what Miami 21 is doing. The proposed new ordinance is online here. Now in the Denver Westword (which appears to be a local alternative weekly) we have this commentary: Everybody must get zoned: Kenny Be looks at Denver's new zoning rules.
The new zoning code is now online and awaits your review. With building restrictions across the city that are all new! The revamped code guarantees that you won't suffer alone, because everybody must get zoned.
The new context-based zoning code completely transforms the planning office into a McZoning service counter. The form-based picture menu clearly shows what can be built and helps the builder/homeowner to select an allowable building (that maintains the existing context of their neighborhood), just by presenting the smiling city planner with an address.
Any Bob Dylan fan like me should be already on board. But go ahead and check out the link, because the article is focused around the cartoons. In the first one, the author/artist analogizes the proposed new zoning regime to a fast food counter and the "menu" above looks a lot like the new urbanist Transect. It also refers to pops and scrapes.
The article pokes fun at the new code and implies some criticism of the form-based code as being overly restrictive and micro-managing of individual property, and too empowering for the bureaucracy. If I'm correct in interpreting the author and the article as coming from a hipster/progressive perspective, it underlines that some of the tensions in land use policy can't be reduced to "cartoon" versions of typical left-right political or cultural splits. But for some really good land use cartoons, check out the article. And listen to some Dylan while you're at it.
Thanks to Megan Currin for the pointer.
John R. Nolon (Pace) has posted The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change, forthcoming in William & Mary Environmental Law and Policy Review, Vol. 34, p. 1, 2009. The abstract:
This article describes how local governments, through the clever application of existing land use techniques, can mitigate climate change. This strategic path follows one developed by Princeton professor Robert Socolow, who identified and described fifteen categories for organizing society’s climate change mitigation efforts. Five of Socolow’s strategic categories fall within the reach of local land use authority: reduced use of vehicles, energy efficient buildings, vegetative carbon sequestration, wind power, and solar power. Through the aggregation of these local land use techniques, significant energy savings and carbon dioxide (CO2) reduction can be achieved. After making some background points, this article describes how local governments are attacking the root causes of climate change and how state and federal policies can embrace local power, energy, and people to launch a coordinated attack on perhaps the greatest challenge our nation faces.
Tuesday, January 19, 2010
From our itinerant friend, Tony Arnold, who is visiting at University of Houston this semester:
& Policy Journal are pleased to announce a Symposium on Climate Change,
Water, and Adaptive Law to be held on Friday, February 26, 2010, from
8:00 a.m. to 5:00 p.m. at the Czech Center Museum, 4920 San Jacinto,
Houston, Texas 77004. Leading experts from diverse universities,
disciplines, professional backgrounds, and policy making roles will
address how law and the legal system need to adapt to address the
impacts of climate change on water resources and regimes, and the extent
to which it can.
Panel on State and Local Adaptation to Climate Change’s Impacts on
1. Robin Kundis Craig, Attorneys’ Title Professor and Associate Dean for
Environmental Programs, Florida State University College of Law (Opening
Presentation of the Symposium)
2. Noah Hall, Assistant Professor of Law, Wayne State University Law
School; Visiting Professor, University of Michigan Law School; Executive
Director, Great Lakes Environmental Law Center
3. Craig Anthony (Tony) Arnold, Boehl Chair in Property & Land Use,
Professor of Law, Affiliated Professor of Urban Planning, Chair of the
Center for Land Use & Environmental Responsibility, University of
Louisville; Symposium Visiting Professor, University of Houston Law
4. Kathleen Miller, Scientist III, Institute for the Study of Society
and the Environment, National Center for Atmospheric Research
5. Daniella Landers, Shareholder, The Sutherland Law Firm, Houston, TX
Luncheon Keynote Speech: The Hon. Eliot Shapleigh (D-El Paso), Texas
Panel on Energy, Climate Change, and Water: The Complex Intersection
1. A. Dan Tarlock, Distinguished Professor of Law and Director of the
Program in Environmental and Energy Law, Chicago-Kent College of Law,
Illinois Institute of Technology
2. Lea-Rachel Kosnik, Assistant Professor of Economics, University of
Missouri-St. Louis; Dispute Resolution Panel Member for Federal
Hydropower Dam Relicenses, Federal Energy Regulatory Commission
3. Amy Hardberger, Attorney, Environmental Defense Fund, Austin, TX
4. Elizabeth Burleson, Assistant Professor of Law, University of South
Dakota School of Law; Consultant, United Nations
5. Scott Deatherage, Partner, Environmental Law Section, & Practice
Group Leader, Climate Change & Renewable Energy Practice Group, Thomspon
& Knight, LLP, Dallas, TX
Symposium Description: "Water use and climate change share a complex,
dynamic, multiscalar interdependence. Water use contributes to climate
change in the energy used to transfer water substantial distances, the
destruction of carbon-sequestering vegetation and erosion of soils (and
the subsequent release of greenhouse gases into the atmosphere) from too
much or too little water, and the facilitation of sprawling (and
arguably unsustainable) development, among other relationships.
Hydropower has been suggested as an alternative energy source that
reduces emission of greenhouse gases, but poses a variety of other
ecological and social concerns. Perhaps most importantly, climate
change will affect water supplies and watersheds, contributing to water
scarcity, rising sea levels, saltwater intrusion into groundwater, more
severe storm-event cycles that alter watershed hydrology, and changes to
riparian vegetation and stream structures that similarly alter watershed
functioning and composition. This symposium will address the capacity
of water law to adapt to the changing, uncertain, and potentially
extreme demands and stresses that climate change -- and our responses to
climate change -- will put on water resources."
For more inhttp://www.law.uh.edu/eelpj/symposium.html, or contact Chief Symposium
Editor/Director - Lisa Baiocchi-Mooney, firstname.lastname@example.org. The
Symposium will offer 8 hours of CLE credit for the State of Texas.
Jamie Baker Roskie
Will Cook and I are headed to Beaufort, South Carolina this week to assist in the implementation of their Transfer of Development Rights program. I have been working with various jurisdictions in Georgia on TDRs since the clinic started in 2002. In fact, one of our first projects was drafting a TDR ordinance for Chattahoochee Hill Country. Since then I've worked with TDR expert Rick Pruetz and other faculty here at UGA on TDR feasibility studies for other Georgia counties.
This time Rick and I have joined forced with Bill Fulton (a planner so famous he has his own Wikipedia page) and his crackerjack staff at DC&E consulting (particularly Aaron Engstrom, who specializes in TDR work).
Beaufort's TDR program is interesting for a number of reasons. It will be an inter-jurisdictional program with the City of Beaufort and the Town of Port Royal. It also has twin goals, to conserve agricultural land and to protect the overflight zone of the Marine Corps Air Station.
We'll have more to report as this project progresses. Also, if Will brings a digital camera, maybe we'll even have some pictures! This is a beautiful area - and where many movies have been filmed, most famously The Big Chill.
Jamie Baker Roskie
We recently completed the landlord/tenant portion of Property I. I usually focus a great deal on the FHA because it combines statutory and common law into a nice blend for the students.
Along those lines, here's an interesting Fair Housing PSA that one of my students sent along:
--Chad Emerson, Faulkner U.
Monday, January 18, 2010
Want to be green? Dump the cul-de-sac. Ban the mall. Leave the Prius at home. The best thing you can do for the environment is to push for dense, compact, attractive and walkable urban neighborhoods that mix homes, shops and offices, just like we used to.
That, in a sharpened nutshell, is the message delivered by The Smart Growth Manual (McGraw-Hill Professional, $24.95), an intentionally slim, readable, well-illustrated and portable how-to guide co-written by Miami architect, planner and pioneering anti-sprawl combatant Andrés Duany.
The book is a follow-up of sorts to their seminal new urbanist text Suburban Nation: The Rise of Sprawl and the Decline of the American Dream (Duany, Plater-Zyberk, & Speck 2001). Of course Miami 21 is highly relevant and gets mentioned in the article. Aside from the substantive contribution that this book will make, I was particularly interested in this snippet from the Herald piece:
Q: Why do you use `Smart Growth' and not `New Urbanist' in the title? Is there a difference between the two?
A: Smart Growth has always been the more popular title. It's not correct. Smart growth is government-initiated. New Urbanist is market-initiated. Smart Growth is almost entirely New Urbanist propositions but repackaged with a more effective name. But the book is balanced (between the two).
Piet M.A. Eichholtz (Maastricht--Economics), Nils Kok (Maastricht--Economics), and John M. Quigley (Berkeley--Economics) have posted Doing Well by Doing Good? Green Office Buildings, forthcoming in the American Economic Review. The abstract:
This paper provides the first credible evidence on the economic value of the certification of “green buildings” - derived from impersonal market transactions rather than engineering estimates. Our analysis of clusters of certified green buildings and nearby comparables establishes that buildings with “green ratings” command substantially higher rents and selling prices than otherwise identical buildings.
Moreover, variations in the premium for green office buildings are systematically related to their energy-saving characteristics. An increase in the energy efficiency of a green building is associated with a substantial increase in selling price - over and above the premium for a labeled building. Further evidence suggests that the intangible effects of the label itself may also play a role in determining the values of green buildings in the marketplace.
Administrative law buffs will take note of the recent news that the Administration Loosens Purse Strings for Transit Projects (NYT).
WASHINGTON — The Obama administration will make it easier for cities and states to spend federal money on public transit projects, and particularly on the light-rail systems that have become popular in recent years, Transportation Secretary Ray LaHood said Wednesday.
Administration officials said they were reversing guidelines put in place by the Bush administration that called for evaluating new transit projects largely by how much they cost and how much travel time they would save.
Transit advocates have long complained that such cost-effectiveness tests have kept many projects from being built — especially light-rail projects, since streetcars are not fast — and made it much harder for transit projects to win federal financing than highway projects.
Here's the DOT press release. Transportation Secretary Ray LaHood says
“Our new policy for selecting major transit projects will work to promote livability rather than hinder it,” said Secretary LaHood. “We want to base our decisions on how much transit helps the environment, how much it improves development opportunities and how it makes our communities better places to live.”
Sec. LaHood discusses it further on his Official Blog, Welcome to the Fast Lane. He states that under the new rule the feds will evaluate local projects by six criteria:
- Economic development
- Mobility improvements
- Environmental benefits
- Operating efficiencies
- Cost effectiveness
- Land use
For an example of how this federal rule change might affect one local government's light rail plans, see this Houston Chronicle analysis. The Federal Transit Administration will soon be initiating a rulemaking process, with notice and comment. Stay tuned.
Metropolis Magazine has a very interesting article and photo essay from a long-time observer of sprawl from the sky:
“With these pictures, I am interested in exploring the intersection of art and environmental politics,” Gielen says. “I hope to trigger a reevaluation of our built environment and the methods of its development, to ask: What can be considered a viable, ecologically sound growth process?”
Read and view the entire article here.
--Chad Emerson, Faulkner U.
Sunday, January 17, 2010
In case readers missed it last year, the New York City Landmarks Preservation Commission has published the fourth edition of its well-known Guide to New York City Landmarks (John Wiley & Sons). This useful guide covers over 1,200 buildings, 90 historic districts, and four centuries of the Big Apple's history, including new research that even the most devoted students of NYC may not yet have encountered. Although the guide is city-specific, it offers lessons on architectural history that communities across the country can appreciate. The Guide makes clear that during an unprecedented period of development, the Landmarks Preservation Commission's efforts at identifying and highlighting iconic buildings provided a signficant counterpoint. Learn more about these efforts by clicking here.
The Landmarks Preservation Commission is the mayoral agency responsible for protecting and preserving New York City's architecturally, historically, and culturally significant buildings and sites. Since its creation in 1965, the Landmarks Commission has granted landmark status to more than 25,000 individual buildings, including 1,215 individual landmarks, 110 interior landmarks, 10 scenic landmarks, and 92 historic districts in all five boroughs. Under the City's landmarks law, considered the most powerful in the nation, the Commission must be comprised of at least three architects, a historian, a realtor, a planner or landscape architect, as well as a representative of each borough.
Will Cook, Charleston School of Law
The talk in Charleston these days--apart from Boeing's decision to build a new manufacuturing center nearby--focuses primarily on proposed plans to construct an upgraded terminal for cruise lines--specifically for Carnival, doubling the current number of cruises departing from the Holy City. Even though Charleston boasts a seafaring past, the land use community's reception to the proposal has been mixed. By way of example, for those who've visited Old San Juan, Puerto Rico, on a busy day when thousands of tourists pour from multiple muti-story cruise ships and overwhelm local infrastructure, similar developments in Charleston may not be such a good thing. To this end, preservationists are weighing in, pro and con, on the proposed two-story system of shops, dining, and lodging planned for the area adjacent to the terminal. Striking the right balance between tourism, economic diversity, quality of life for local residents, and preservation of historic resources is never easy, but public discussions on the topic suggest that local consensus may be reached. Click here and here to learn more. New York design firm Cooper Robertson & Partners, which has already designed several public buildings in historic Charleston (Visitors Center, Judicial Center, College of Charleston School of Education) has been selected to do the work.
Will Cook, Charleston School of Law
James Van Hemert, AICP and sustainability advocate, has left the directorship of the Rocky Mountain Land Use Institute to become the planning director of a small town in Vancouver, BC and an organic farmer. This according to "DU Today," the news service of the University of Denver. RMLUI has been associated with the University of Denver for almost 20 years, and it is a strong voice for smart growth in Colorado. However, according to the article on DU Today, Van Hemert believes Denver's moves toward sustainability have been "tepid at best," and so he and his wife decided on this move to BC as an attempt to live a more sustainable lifestyle themselves. Although we'll miss his presence in the academic realm, I'm sure this is not the last we'll hear from James. We wish him well in his new endeavors.
Jamie Baker Roskie
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- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy
- Fennell and Peñalver on Exactions Creep
- March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities