Saturday, September 11, 2010
One of my students observed the other day that the number of large retail buildings (big boxes like Lowes, Kohls and Walmart) being built seems to have really slowed. I agreed on an anecdotal level because you just don't seem to see as many new big boxes under construction.
If this is the case, then it obviously could have a huge effect on land use patterns since big boxes where the anchors for so many commercial development sites over the last two decades.
All of this led me to a recent guest post on the Zero Hedge blog that includes some fascinating insights into the future of big box development:
Retail America has run directly into a brick wall. Below are charts detailing the expansion history of four of the most admired retailers in America. Lowes grew their store count from 600 to 1,700 over the course of the decade, a 183% increase. Wal-Mart grew their store count from 4,000 to 8,500, a 113% increase. Target grew their store count from 1,000 to 1,750, a 75% increase. Kohl’s grew their store count from 300 to 1,050, a 250% increase. Same store sales are the true measure of a retailer’s health. When comp store sales are +5% or better, retailers make substantial profits and confidently build new stores. As the charts below clearly show, comp store sales have been in a substantial downtrend since 2006. The new stores that have been built in existing markets are over cannibalizing their existing stores.
Lowes has 500 more stores today than it had in 2005, $4 billion more sales, and $1 billion less profits. Target has 340 more stores today than it had in 2005, $12 billion more sales, and the same profit. Kohl’s has 240 more stores than it had in 2006, $1.6 billion more sales, and $100 million less profit. Only Wal-Mart has kept the profits flowing, mostly due to its international expansion. The tough times have only just begun for these retailers.
These are some very startling numbers. If accurate, then the whole commercial development system of anchor store, sub-anchors, narrow bays, and outparcels is unlikely to reappear anytime soon on any level approaching the past.
--Chad Emerson, Faulkner U.
Friday, September 10, 2010
Michael Burger (Roger Williams) has posted It's Not Easy Being Green: Local Initiatives, Preemption Problems, and the Market Participant Exception, published in the University of Cincinnati Law Review, Vol. 78, No. 835, 2010. The abstract:
This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments -- along with the states -- positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their initiatives and the actual effect they have on federal schemes. Indeed, while environmental law has long sought a balance between federalization and devolution of regulatory authority, current preemption doctrine, as applied to federal "ceilings," almost exclusively favors federalization values. The market participant exception offers a means to correct this imbalance. This Article begins by providing a detailed discussion of the evolution of the market participant exception in the dormant Commerce Clause and preemption contexts and unpacking the rationales behind federal "floors" and "ceilings." It then analyzes the collapsing roles of governments and corporations as regulators and market actors, and recasts the work of local governments undertaking climate change initiatives as a "race to the top" of the market for "green" places to live, work, and invest. The Article then articulates a revised test for the market participant exception and illustrates through several case studies how the test can successfully empower local autonomy and enable local innovation without sacrificing the benefits of federal law.
Looks like an interesting article, and I can say with some confidence that it's the best land use article I've seen to riff off of a Kermit the Frog single (although now that I think about it, I'm surprised that more authors haven't noted the Muppet-like travails of Being Green).
Thursday, September 9, 2010
From Robin Craig at FSU:
Florida State University College of Law, Distinguished Environmental Lecturer Series. Presented by the Journal of Land Use & Environmental Law.
Kirsten Engel, Professor of Law, University of Arizona James E. Rogers College of Law, "Should Climate Change be the Subject of State Public Nuisance Liability Lawsuits?"
Wednesday, September 22, 3:15 p.m., BK Roberts Hall Room 102.
Followed by a reception in the Rotunda.
Jamie Baker Roskie
Antonia Layard (Cardiff Law School) has posted Shopping in the Pubic Realm: The Law of Place, published recently in the Journal of Law and Society, Vol. 37, p. 412, (2010). The abstract:
Over the years, Alabama has become quite the hotbed for smart growth and new urban efforts. Birmingham, Montgomery, and Huntsville all have experienced this approach to sustainable development (and re-development) to different degrees.
Now, South LA (Lower Alabama, that is) is getting into the mix as Alabama's growing port city of Mobile is considering several smart growth options.
The Mobile Press-Register is doing a two part series that includes a discussion of how smart growth regulations could work in Alabama's city by the bay:
The city has instituted some "piecemeal" zoning changes in an effort to facilitate New Urbanism-style growth, Clarke said, but there has been little to no building under those zoning options. "What development that is going on right now, continues to be the suburban-sprawl type development," she said.
Howard Blackson, a San Diego-based urban planner with PlaceMakers, a consulting consortium, said he's not surprised that the new zoning options haven't taken off. PlaceMakers is well-known for its work in helping U.S. cities overhaul their land-use rules.
Sprawl stems from the zoning system itself, not from the type of zoning options available under the system, Blackson said.
Mobile, like most American cities, has a use-based zoning system, which means that land is mostly divided into residential, commercial and industrial uses. The city also has a mixed-use option, but it hasn't attracted significant development interest thus far.
New Urbanism planners like Blackson advocate a different approach -- creating "form-based codes" for development. Form-based codes establish what a neighborhood will look like, but leave the actual use of each parcel up to the owner.
Despite having a well-designed city center (especially along Dauphin Street), in the last five or six decades, the city has yet to move far beyond the type of Euclidean zoning and planning that has induced the type of unlasting and unflattering development that doesn't do this otherwise grand city justice.
That's a shame because there really should not be much difference between a place like Charleston and Mobile--both are filled with interesting history, nice architecture, and an extensive waterfront. The big difference though is that one has realized its potential while another lags on.
That's what a poorly-conceived approach to land development--especially in a dense urban area--can result in.
--Chad Emerson, Faulkner U.
Wednesday, September 8, 2010
Through the Denver Post I've been following the story of a fire in northwest Boulder that has claimed 7,100 acres and about 95 structures. Even as their homes burn, some of the residents are pledging to rebuild.
And yes, they all said, they would all return or rebuild once the fire is out, even if the once-lushly green, heavily forested canyon is reduced to a charred moonscape.
"Rebuild? Yes, right where we're at," Flores said. "It's beautiful up there."
"Well, I'm from Detroit," Farran said, indicating that even a burned landscape is better than his hometown. "That should about answer you right there."
It seems like after every disaster there's great debate about whether people should be allowed to live in areas prone to flooding, fire, earthquakes, etc. (For example, here's an article from the San Francisco Chronicle's webpage about building in flood zones.) But, the reality is that human settlements are always subject to larger natural forces (even when, in the case of this fire, the natural disaster is a fire probably started by a human). Reams of scholarship has been written on this subject - I wonder if any of you blog readers have any you'd like to share, or any general perspectives?
Jamie Baker Roskie
UPDATE: Here's an editorial from the Post about the wisdom of spending federal fire mitigation money to protect remote private residences. Not surprisingly, they're against it.
One of the interesting facts about historic resource preservation is that its boundaries are always growing. But some communities have not embraced fully this facet of preservation, even as Modernist architecture matures and qualifies for official National Register listing on the federal level. This is especially true in communties with rich stocks of 18th and 19th century architecture, where the preservation aesthetic tends to favor colonial, neo-colonial, and other revivalist styles. New Canaan, Connecticut, only one hour north of New York City, is one community with a treasure trove of traditional as well as Modernist styles. New Canaan, then, has felt this tension acutely, especially as property owners increase to subdivide large lots into smaller, developable parcels.
Many of New Canaan's modernist houses sit on these large lots. Even though they make important statements about life in America at the time of their construction and teach important lessons about building form and architecture's relationship to function and nature, modernist houses fall--at the moment--outside of current mainstream style preferences. Moreover, Modernist homes are usually modest in scale, and thus too small for a market that tends to prefer large, overscaled architecture of the post-Modernist sort. Unless local preservation ordinances are calibrated to protect "newer" structures, as well as more traditional styles the public more typically associates with historic preservation, Modernist houses, such as those in New Canaan, will face increasing demolition pressure as demand for land outpaces a community's desire to preserve. Click here to read more or see David Hay, Too New for New Canaan, Preservation 34 (Sept./Oct. 2010).
Will Cook, Charleston School of Law
Tuesday, September 7, 2010
Charles M. Lamb (Poli Sci, SUNY-Buffalo), Nicholas R. Seabrook (Poli Sci/PA, North Florida), and Eric M. Wilk (Poli Sci, Georgia) have posted Fair Housing Policy Making in the Lower Federal Courts. The abstract:
When the Supreme Court became progressively more conservative after the late 1960s, fair housing — more of a policy concern of liberal judges — gained little traction with the Court. Moreover, the housing discrimination decisions that the Court did announce were conservative. This left a power vacuum in the federal judicial system, allowing the courts of appeals and the district courts to play an expanded policy making role in both constitutional and statutory issues. Specifically, the lower federal courts have been able to affect fair housing policy by incrementally moving the law in a liberal direction, but avoiding the kind of sweeping decisions that might attract too much Supreme Court attention. Some more liberal decisions, especially those where a court of appeals has reversed a district court, have been overturned at the Supreme Court level, but many incrementally liberal decisions have been allowed to stand. We further suggest that the most liberal federal fair housing decisions since the early 1970s have come predominantly from the more liberal circuits that represent large cities in the Northeast and Midwest, precisely where the problems of housing discrimination and segregation are frequently most serious.
From Kermit Lind at Cleveland State:
A broadcast on NPR today features a matter in which the UDLC is involved. It can be heard at . The story by WCPN Ideastream's Mhari Saito describes the real estate scams by Go Invest Wisely, a Utah based firm bilking both investors and home-buyers out of money with house-flipping schemes.Sunny Nixon, 3L, is a Fellow in a special UDLC fellowship program. She and Robert Hern, 3L, are appointed for a year to provide legal assistance to defendants in Cleveland's Housing Court who have a defect in the title to their house. Ms. Nixon has a client, Tania Kirkwood, who was featured in the broadcast as a Cleveland victim of Go Invest Wisely. Details of how home-buyers like Ms. Kirkwood, and investors from the U.S. and Canada were bilked out of hundreds of thousands of dollars can be found in the broadcast. A transcript of the story is available at the WCPN web site.
This story not at all uncommon in Cleveland and the UDLC has had several like it referred for legal assistance. By the time the buyers of what they expect to be the fulfillment of the American Dream get to a lawyer, it is rarely possible to rescue the house. It becomes a matter of rescuing the person from the house that has become a trap. In Ms. Kirkwood's case, she was sold a condemned house by an investor in Canada who did not at the time of sale have title to it. After she put all the money she had into it, the house is still in a condition that is unsafe for her to live in. It is scheduled for demolition in order to protect the public health, safety and welfare.
Ms. Kirkwood wanted her story to help others avoid her plight and Ms. Nixon helped Mhari Saito and WCPN with this story. Ms. Saito's coverage of Go Invest Wisely is very extensive with much more information that one broadcast could contain. She, along with Ms. Nixon and Mr. Hern, have become leading experts on how these schemes are exploiting house-hungry people in the Cleveland area.
Jamie Baker Roskie
The excellent Real Estate Center at Texas A&M University has issued its report on the Housing Market: 2010 First Half Recap. Authored by research economist James P. Gaines, the report has analysis of the national and Texas markets and a preliminary forecast for the next six months. It's a quick read. From the analysis:
The housing market during the first half of 2010 showed marked improvement over the same period in 2009 largely attributable to unprecedented government stimulation. Year-over-year data comparisons for the first six months of 2010 with the same period in 2009, when the original tax credit was just getting under way, suggest an improving market. However, sustainability during the second half of the year with no incentives remains questionable.
The second half of 2010 holds significant challenges for the housing market. It remains to be seen to what extent the private market can support the market without significant government inducements. Pending sales, nationally and in most Texas communities, and applications for purchase mortgage financing are depressed substantially, indicating much-reduced sales volumes in the next few months.
Dr. Gaines concludes, however, that if there is less-than-exepected dropoff in the coming months, it could be a sign of economic recovery. If you're not familiar with the Real Estate Center, they are an outstanding resource for reports and data; they also have a regular listserv and podcast.
Michael C. Blumm (Lewis & Clark) and Elizabeth B. Dawson (J.D. Candidate) have posted The Florida Beach Case and the Road to Judicial Takings. The abstract:
September 7, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Local Government, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)
Magdalena Habdas (U. of Silesia Katowice) has posted My Home is My Castle--But is My Castle Truly Mine? Polish Historical Immovables as Objects of Ownership. The abstract:
Monday, September 6, 2010
Since the initial details are not clear, we'll have to wait and see if this spending bill includes monies for light rail and other intra-city and intra-urban transit options.
The goals, according to the White House: “Rebuild 150,000 miles of roads — renewing our commitment to the backbone of our transportation system … . Construct and maintain 4,000 miles of rail — enough to go coast to coast. ... Rehabilitate or reconstruct 150 miles of runway — while putting in place a NextGen system that will reduce travel time and delays.
If that's not the case, then it's hard to call this anything other than funding the status quo when it comes to transportation policy. And, considering how poorly the node/bypass/node model has affected urban land uses, that's unfortunate.
On the other hand, if the proposed spending plan included funds for something like this, well, that would be a welcome change:
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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?
- Land Use, Telescopes and Sacred Land in Paradise
- 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