Friday, October 15, 2010
One of the major tenets of Traditional Neighborhood Developments is to replicate the on-street parking you find in many urban areas. This helps slow down traffic which, in turn, provides a safer pedestrian environment.
Historically though, some fire departments have been skittish about this because of perceived access problem. "Perceived" because its not always the reality.
Recently, the issue popped up in the Lost Rabbit development outside Jackson, Mississippi.
The problem with parked cars clogging the narrow streets of Lost Rabbit may soon be gone. Madison County officials recently met with the neighborhood developer and officials of the Pearl River Valley Water Supply District, the owner of the property at the end of Madison's Hoy Road to work out a compromise. Mack Pigg, the county fire coordinator, said county officials expect a letter from the developer to go out soon to homeowners and contractors working there warning them not to park on the street or risk being towed.
The issue of a perceived versus real problem is explained later in the article by a spokesman for the Congress for New Urbanism:
The issue of narrow streets in traditional neighborhood developments is a perennial one, said Stephen Filmanowicz, with the Congress for the New Urbanism, a Chicago-based nonprofit that promotes walkable, mixed-used neighborhood development. "The streets in TNDs are expected to form highly connected networks, with lots of street crossings and no cul-de-sacs. This means many routes to any point," he said. "A problem is that most fire guidelines and fire codes assume a conventional street system. ... There's a corresponding insistence on wide streets to allow room for two pieces of equipment to pass each other. "In a well-designed TND, that's not necessary, since a driver of a fire truck could find a convenient alternate route, adding only seconds, if another truck were blocking the original route," he said.
--Chad Emerson, Faulkner U.
Thursday, October 14, 2010
You may have noticed that there has been an upswing in the number of new article abstracts posted here on the blog recently (in addition to the heated Las Vegas debate). I suspect that's because we are in the aftermath of the fall submission season. Regardless, there has been an abundance of great new scholarship in land use lately.
I'd like to renew our general invitation to the land use community to let us know about any new papers, studies, or projects you may have that you think would merit some attention. We would love to post your abstract, or to give you a platform to provide you a more detailed introduction to your scholarship, if you have some interesting thoughts to share. We had some great guest-blogging earlier this year from Ken Stahl and Jim Kelly about their recent articles. We look forward to hearing more about the new ideas in the field, so please feel welcome to contact us if you have a new article or would like to contribute to the discussion.
Adam J. Levitin (Georgetown) and Susan M. Wachter (Penn--Wharton, Real Estate) have posted Information Failure and the U.S. Mortgage Crisis. The abstract:
This paper argues that during the housing bubble, housing finance markets failed to price risk correctly because of information failure caused by the complexity and heterogeneity of private-label mortgage-backed securities and structured finance products. Addressing the informational problems with mortgage securitization is critical not just for avoiding future housing bubbles but for rebuilding American housing finance. The continued availability of the long-term fixed-rate mortgage, which has been the bedrock of American homeownership since the Depression, depends on the continued viability of securitization. The paper proposes that mortgage securitization and origination be standardized as a way of reducing complexity and heterogeneity in order to rebuild a sustainable, stable housing finance market based around the long-term fixed-rate mortgage.
From my colleagues at UGA's Fanning Institute:
Brownfields Redevelopment in Georgia
Keeping Projects Moving Forward in an Uncertain Economy
October 26, 2010
11:00am - 12:30pm
Register at: http://www.fanning.uga.edu/work/brownfields/brownfields_webinar.html
Join the Georgia Chapter of the National Brownfields Association and the University of Georgia’s Fanning Institute as we engage professionals from the finance, consulting, regulatory and development sectors in an interactive discussion of current brownfields projects and new ideas to promote the development of challenging properties. Our expert panel includes:
· Darahyl Dennis, Chapter President, Georgia Chapter of the National Brownfields Association
· Alex Cleary, Georgia EPD
· Dan Grogan, MacTec
· Madeleine Kellam, Georgia EPD
· Matt Robbins, US EPA
· Gerald Pouncey, Morris, Manning & Martin, LLP
· Mark Smith, Georgia EPD
· Charles Whatley, Atlanta Development Authority
· Bill Bryant, Georgia Power
· Courtney Tobin, Fanning Institute
This would probably be great for anyone working on brownfields.
Jamie Baker Roskie
Wednesday, October 13, 2010
I have been put in the unenviable position of defending Las Vegas against the claim that it is a racy, uncultured, highly sexualized theme park.
But I can say that having lived in Las Vegas for 11+ years, I have not had 1/20 of the bawdy experiences that journalist J.R. Moehringer had in his relatively short stay here. I don't know who this Caligula neighbor is, but in my experience the omniscient and omnipresent homeowners association would have put a quick stop to his noisy escapades. And none of the friends who have visited me here have been treated to backyard parties stocked with statuesque women named Dallas and Paris. I am a boring host in a boring suburb.
The article reminded me of two things about Vegas that I think about almost weekly. First, what possessed people to stop here in the first place? I know that the easy answer is water. Believe it or not, Las Vegas was once a relatively lush oasis amidst the otherwise stark Mojave desert. But it is hard to conjure up that image when it is 115 degrees outside and you are surrounded by brown dust and rocks. Of course, if you find yourself in these stark surroundings, you have undertaken a deliberate hike into the desert or taken a serious wrong turn, because most of Vegas is now an irrigated, landscaped, palm tree-lined park.
Second, one of the most charming features of Vegas (to me) is that it allows everyday people to experience the bacchanalia that is normally reserved for the rich or beautiful (or both) in other cities. For one weekend, everyone is invited to Caligula's backyard to see how the other half lives. Everyone is invited to strike it rich at craps or blackjack, surrounded by free drinks and beautiful people. It's America's egalitarian, libertarian wonderland.
But I wouldn't know much about bacchanalia and blackjack. Most weekends you'll find me on the couch, in the suburbs, watching football and reading email.
Ngai Pindell, UNLV
As I mentioned in a previous post, former head of Georgia Rural Development for the USDA Shirley Sherrod spoke Saturday night in Gainesville, Georgia. The occasion was a banquet celebrating the 60th Annivesary of the Newtown Florist Club, a Land Use Clinic client. There was a good turn-out for Sherrod's first speech since her ouster and the attempted re-hire by the Secretary of Agriculture. (Read the latest press re: the government e-mails about the controversy, recently obtained through a FOIA request.)
Sherrod's speech was deeply personal. She described the unpunished murder of her father by a white farmer in the 1960s, and how that event made her devote her life to changing things in the South. Her feelings about her father's murder, and the extensive discrimination suffered by black farmers in Southeast Georgia, at first lead her to hesitate in helping a white farmer (when she was running a non-profit agency, before her time at USDA). In telling the story of how she overcame that hesitation to help the white farmer, she became open to the accusations of racism that lead to her ouster, even though she was trying to make the point that, for her, rural development is not about race but about poverty.
Sherrod says she shared that story about the farmer back in July to show others that if she could overcome her own personal demons, then so could others. The story was meant to be used as an example and encouragement for others to come together.
"We can't just work in isolated groups, (all races) need to work together to make the changes in the world that we need to make," Sherrod said.
"It's not about black people by themselves and it's not about white people by themselves. Let's all come together as a community."
I came away with the impression that she plans to write a book about her life, and she vowed at the end of her speech to continue to speak out about racism. It will be remarkable to see where she goes next, in her already remarkable life.
Jamie Baker Roskie
Tuesday, October 12, 2010
Patricia Salkin (Albany) has posted Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations, forthcoming in the Pace Law Review. The abstract:
This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses on the professional ethical considerations of the various players in the land use game as it specifically relates to the use of social networking sites. For lawyers, the applicable Rules of Professional Conduct are examined and for Planners, the Code of Ethics of the American Institute of Certified Planners (AICP) is explored for guidance. The article concludes with a warning that that although there are benefits to the use of social networking tools for land use planning and zoning initiatives, attorneys, government agencies, planners and others should use caution when employing these tools, being certain to weigh ethics and professionalism implications, social justice goals and public participation mandates and aspirations against the advantages of these tools, and the uncertainty of how courts might apply myriad legal mandates in cyberspace.
Robin Paul Malloy (Syracuse) has posted Real Estate Transactions and Entrepreneurship: Transforming Value Through Exchange, Indiana Law Review, Vol. 43, p. 1105, 2010 . The abstract:
This article grows out of a paper presented at the 2010 Annual Meeting of the AALS. It was presented at a joint session sponsored by the AALS sections on Real Estate Transactions and Property Law. The article makes three key points.
1) It explains, from a transactional perspective, the relationship between property law and the law of real estate transactions.
2) It explains the growing significance and enhanced strategic value of real estate transactions law relative to property law.
3) It calls for development of a deeper theory of real estate transactions, independent of property law theory, and suggests that such a theory ought to account for the relationship between real estate transactions and entrepreneurship. Suggestions are offered with respect to the meaning of entrepreneurship, and different types of entrepreneurial styles/motives that might operate in real estate markets.
David J. Reiss (Brooklyn) has posted First Principles for an Effective Federal Housing Policy, forthcoming in the Brooklyn Journal of International Law. The abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This article provides a taxonomy of goals for housing policy. The article first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s “ownership society.”
Beginning with these possibilities, I identify and categorize various “principles” of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This article seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Meredith R. Miller (Touro) has posted Strategic Default: The Popularization of a Debate Among Contract Scholars, Cornell Real Estate Journal, Vol. 9, Forthcoming . The abstract:
A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether the willful breach of a contract has a moral element.
For those scholars that maintain that it is possible to describe and prescribe contract law with a general, unifying theory, the debate is primarily one between promise-based theories and economic theory. This debate between promissory and economic theory reflects a perpetual volley concerning whether contract law should reflect the primacy of morality or efficiency.
The argument of those that support strategic default reads like a case for efficient breach. Many of these commentators argue that the mortgage contract simply presents home borrowers with a choice: pay or surrender the property in foreclosure. If a homeowner is deep underwater, she is better off defaulting and the lender is no worse off relative to the bargain (after all, the lender agreed to foreclosure as a remedy). However, those who argue in favor of strategic default are counteracting a prevailing social norm that it is fundamentally immoral to willfully breach a contract. Many of the blog comments and even newspaper editorials have reflected a general sense that the homeowners who strategically default are acting shamefully.
The public discussion further mirrors the academic debate about whether encouraging efficient breach enables the greatest public good or, instead, undermines the very convention of contracting. On the one hand, strategic default serves as an example of how encouragement of breach of contract may lead to a breakdown of confidence in the marketplace and, in turn, could inhibit market activity. On the other, it is difficult to muster sympathy for lenders, whose imprudent loans are a large piece of the systemic problems that precipitated the housing crisis.
In the end, to the extent that questions of morality are nuanced and contextual, the example of strategic default elucidates the futility of either morality or efficiency as a unifying descriptive or normative theory of contract law. Indeed, it suggests that instead of focusing on individual contracts between borrowers and lenders, a more fruitful public discourse should be reframed to focus on appropriate systemic reforms to prevent the practices that played a part in devastating outcomes for the housing industry, families and communities. Because the concerns about strategic default – neighborhood depreciation and market collapse – are systemic, the solutions should be driven by those concerns, rather than shaming individual borrowers who decide to walk away.
Contiuning in our Las Vegas theme, I ran across an article in the October issue of Smithsonian magazine by someone who dislikes Vegas even more than I. Journalist J.R. Moehringer lived in Vegas while collaborating on a book with Andre Aggasi, and he has this to say about America's playground:
Vegas isn’t a real city. It’s a Sodom and Gomorrah theme park surrounded by hideous exurban sprawl and wasteland so barren it makes the moon look like an English rose garden.
No matter what you read about Vegas, no matter where you read it, this assertion invariably pops up, as sure as a face card in the hole when the dealer’s showing an ace. Vegas is unlike any other American city, and yet Vegas is America? Paradoxical, yes, but true. And it’s never been more true than during these past few years. Vegas typified the American boom—best suite at the Palms: $40,000 a night—and Vegas now epitomizes the bust. If the boom was largely caused by the housing bubble, Vegas was bubble-icious. It should be no surprise, therefore, that the Vegas area leads the United States in foreclosures—five times the national rate—and ranks among the worst cities for unemployment. More than 14 percent of Las Vegans are without work, compared with the national rate of 9.5 percent.
I’ll miss the whole seamy, seedy, icky, apocalyptic tawdriness of it all. While I was busy hating Vegas, and hiding from Vegas, a funny thing happened. I grew to love Vegas. If you tell stories for a living or collect them for fun, you can’t help but feel a certain thrill at being in a place where the supply of stories—uniquely American stories—is endless.
That doesn’t mean I’m staying. Vegas is like the old definition of writing: though I don’t enjoy writing, I love having written. Though I didn’t enjoy Vegas, I love having lived there.
Read the whole article here.
Jamie Baker Roskie
Monday, October 11, 2010
Carol Necole Brown (North Carolina) and Serena Maria Williams (Widener-Delaware) have posted Rethinking Adverse Possession: An Essay on Ownership and Possession, published in Syracuse Law Review, Vol. 60, No. 3, 2010 The abstract:
In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just as devastating. We should reexamine, more broadly, concepts such as adverse possession that result in loss of ownership and move away from those whose foundation is in wrongdoing. The article begins with a brief discussion of foundational concepts inherent in the adverse possession doctrine. It then analyzes four examples that demonstrate the impact of adverse possession: 1) the purchaser and the bona fide donee; 2) the co-owners; 3) the squatters; and 4) the erroneous deed. The article concludes by summarizing the policies that justify abrogating the adverse possession doctrine.
Incredibly sad news: Professor Richard Nagareda has passed away, unexpectedly. Here is the Vanderbilt press release. His passion for teaching and scholarship has inspired students, lawyers, and scholars in land use as well as his own fields of mass tort, evidence, and procedure. He was relatively young and this is hard to believe.
He was a fantastic scholar: Mass Torts in a World of Settlement (Chicago, 2007) stands as a seminal work in the field. He was also a very generous mentor. When I first went on the teaching market, Richard reached out to me and gave me advice and encouragement; he listened to my moot job talk (a disaster!) and sent me detailed comments on how to straighten it out; and when I got my first chance as a VAP at Georgia, he even helped me with advice about daycare and schools in Athens. Everyone at Georgia and Vanderbilt who knew Richard thought he was terrific. I last saw him at the AALS mid-year and he was as kind and encouraging as ever.
My personal interactions with Richard, limited as they were, are probably a common story among the many students, lawyers, and scholars he has helped. But what is most important to me is that Prof. Nagareda was the single best classroom teacher I have ever seen--and I say that in all seriousness considering the many truly wonderful teachers I have had as a student, and have known as colleagues. I took his Evidence class (with about 130 others) as a 3L after he moved from Georgia to Vanderbilt. He came in every day and made us believe that what we were doing was serious and important, yet also interesting and fun. His combination of professionalism, high standards, humor, and humanity is something that has inspired me profoundly as a teacher. I still remember many things that he said back in that class in 2001 (now that I think of it, he even had the leadership ability to speak to the class and bring us through on September 11). I'll never forget the time he told us that, as much as he enjoyed the scholarly part of his job (at which he was an academic rock star), his greatest motivation was to be with us in the classroom. I try to take that perspective into class every week. I have had a number of wonderful and inspiring mentors who have helped me to begin my academic career and to grow in the substantive areas in which I work; but Richard Nagareda is the law professor whom I still try most to emulate as a teacher.
Sunday, October 10, 2010
Christopher Lewis Peterson (Utah) has posted Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory, forthcoming in the Real Property, Probate, & Trust Law Journal. The abstract:
Hundreds of thousands of home foreclosure lawsuits have focused judicial scrutiny on the Mortgage Electronic Registration System (“MERS”). This Article updates and expands upon an earlier piece by exploring the implications of state Supreme Court decisions holding that MERS is not a mortgagee in security agreements that list it as such. In particular this Article looks at: (1) the consequences on land title records of recording mortgages in the name of a purported mortgagee that is not actually mortgagee as a matter of law; (2) whether a security agreement that fails to name an actual mortgagee can successfully convey a property interest; and (3) whether county governments may be entitled to reimbursement of recording fees avoided through the use of false statements associated with the MERS system. This Article concludes with a discussion of steps needed to rebuild trustworthy real property ownership records.
Darren A. Prum (Nevada-Las Vegas) and Sarah Catz have posted Greenhouse Gas Emission Targets and Mass Transit: Can the Government Successfully Accomplish Both Without a Conflict? The abstract:
President Obama along with Congress has made it clear that there is a national need to reduce greenhouse gas emissions across the board. While state and federal smart growth legislative initiatives are being developed to accomplish the targets set by our policy makers, few if any initiatives have integrated the biggest tool in the tool box to reduce emissions -- transit. Most transit agencies across the board have cut service back by 20 to 40 percent. Retaining transit service levels (if not increasing levels) needs to be a national goal in order to reach a realistic reduction in greenhouse gas emissions.
This article reviews state and federal legislative greenhouse gas emissions initiatives and explores what legislative and fiscal opportunities exist to converge the funding of transit programs with greenhouse gas emission reduction targets. These smart growth regulations must begin to link land use with transportation systems that can positively influence greenhouse gas emissions.
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- 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?
- Jessie Owley on 10th Circuit Disallows Conservation Easement Deduction Where Mortgage Not Subordinated at Time of Donation
- "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
- Local Regulation of Hydraulic Fracturing