Saturday, November 13, 2010

Witold Part Two...

Earlier this week, I posted Witold Rybczynski's essay from   It was Part One in a series of two.

Part Two is this very interesting slideshow of images that further his point of how urban design can enhance urban life.

Check it out here.

--Chad Emerson, Faulkner U.

November 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, November 12, 2010

Perry on Deepwater Horizon and the Limits of Civil Liability

Ronen Perry (Haifa) has posted The Deepwater Horizon Oil Spill and the Limits of Civil Liability, forthcoming in the Washington Law Review.  The abstract:

The article, which follows up on my recently published work, uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. 

This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case.

Part I systematically discusses pre-OPA law. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime.

Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps, or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. The article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution.

Matt Festa

November 12, 2010 in Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 11, 2010

Rezazadeh on Social Capital in Revitalization of Dilapidated Neighborhoods

Razieh Rezazadeh (Iran U. of Science & Technology--Architecture & Urban Planning) has posted Application of Social Capital in Revitalization of Dilapidated Neighborhoods: The Case of Saboonpaz-Khaneh in Tehran, from OIDA International Journal of Sustainable Development, Vol. 1, No. 10, pp. 75-80, 2010.  The abstract:

In many cities around the world prosperous neighborhoods of yesterday become dilapidated Inner city neighborhoods of today. This is due to a process of degradation which creates dissatisfactory living conditions. This in turn devaluates the property and changes the social structure and commences a cycle of physical dilapidation. For revitalization of such neighborhoods, different approaches have been recommended from total demolition and reconstruction to conservation and even social empowerment. This paper would review the dilapidation process in a centrally located neighborhood adjacent to Bazzar of Tehran and searches appropriate tackling strategy considering its characteristics which is a representative typology. 

A detailed and in depth study is conducted in Saboonpaz-khaneh neighborhood in Tehran, to investigate the dilapidation process and find out appropriate approach to achieve a socio-physically sustainable development solution for revitalization of the neighborhood. This previously centrally located residential neighborhood close to the old Bazaar and central business district is now housing the lowest class of blue collar workers and also serves as storage space for bazaar as well as accommodating illegal small workshops of the informal economic sector. 

The organic fabric, inadequacy of infrastructures, and other physical problems have caused continues depopulation and change of land use. Continuation of this trend would create an inner city ghetto in which only the very poor and deprived population would be residing in. Despite these, a well conducted survey shows that the neighborhood is benefiting from high level of social capital; however the range of its different indices is different, the reasons of which are discussed in the paper. Here it seems that social capital could be used in order to stop the dilapidation process and to increase the property value, type of residents and land uses. Therefore a series of strategies based on the use of present social capital is suggested.

Matt Festa

November 11, 2010 in Architecture, Comparative Land Use, Economic Development, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

City Journal's Malanga on The Next Wave of Urban Reform

Steven Malanga of the always-interesting City Journal has published The Next Wave of Urban Reform: Mayors Cory Booker and Dave Bing fight to save two of America's most distressed cities.  From the article: 

Since the mid-1960s, many big-city mayors and Washington policymakers had argued that the problems plaguing America’s cities—rising crime, deteriorating schools, sluggish economies, and social dysfunction—resulted from national and global economic forces that urban politicians were powerless to resist. Out of that period came an array of ambitious federal programs to aid city residents and revitalize struggling urban neighborhoods. Even though the programs—many of them carried out under the banner of the War on Poverty—did little to boost cities’ fortunes, the refrain that urban woes were Washington’s responsibility became commonplace among mayors and remained so for nearly three decades. . . . 

Now, though, at least two mayors of cities perennially deemed hopeless are trying to bring urban reform to city hall: Cory Booker, entering the fifth year of his fight to remake Newark; and Dave Bing, the former Detroit Pistons basketball star barely 18 months into his job at Detroit’s helm. Both mayors battle entrenched cultures of patronage, sleaze, and dependency that have made their cities virtual wards of the state and federal governments. Both challenge residents and policymakers to find solutions at home, not look for them in Washington. In some ways, their jobs are even tougher than those of the reformers of the nineties, since the troubles their cities face are more ingrained. Their efforts nevertheless offer two of America’s most distressed cities the first hope in decades.

Now I've never been to Detroit, but I am originally from Jersey, and I know that Newark has had its problems, such as the mafia corruption exemplified by the story of mobster Jerry "Chicken Delight" Festa, chronicled in the 1984 book Marked to Die.  No relation, so I'm told.  Anyway, the City Journal article is a good read and thought-provoking about the possibilities and problems facing urban reform.  

Matt Festa

November 11, 2010 in Local Government, Planning, Politics, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Venne on Property Rights and Democracy in Oregon

Patrick J. Venne has posted his paper Out of Bounds: Reconciling Private Property Rights and Democracy in Oregon.  The paper is about urban growth boundaries in Oregon.  From the intro:

Urban growth boundaries are tools of urban containment applied to curb the otherwise natural outward sprawl of cities into the countryside--an unattractive stretch of physical structures that has economic as well as environmental costs. UGBs are implemented literally as physical boundaries outside of which urbanized development is for all intents and purposes largely banned. For many reasons, some obvious and others not, such devices have been received with mixed fanfare and in some instances have been highly contested.

While you're at it, check out Patrick's blog, Mainely Urban, focusing on urban development and land use planning in Maine and nationally.  From Portland OR to Portland ME!  It's a really informative and nice-looking blog with lots of great pictures and visuals.    

Matt Festa

November 11, 2010 in Architecture, Planning, Redevelopment, Scholarship, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)

Another Short Video...

I've found that students often respond well to short videos when working to explain/demonstrate a land planning point. 

Previously I shared videos on parking (Donald Shoup's work) and parking lots.  Here's another one that does a nice job discussing improved pedestrian/bicycle activity through enhanced traffic calming strategies in Portland.

See the free video here.

--Chad Emerson, Faulkner U.

November 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Atlantic Yards: The Musical ("It's Not")

From The New York Times:

An alternative theater company has created a work based on the controversial Atlantic Yards development in Brooklyn.

“So there’s ULURP,” begins the second song in a new musical about Brooklyn. “ULURP is the Uniform Land Use Review Procedure/Which required community involvement and public review/Of all kinds of New York City land-use projects.”

If this seems like something you might read in the notes of a community board meeting, that’s because it is. The song goes on to define the Empire State Development Corporation and the New York State Urban Development Corporation (E.S.D.C. and U.D.C., for musicality) and describe how they function together. “And that’s how eminent domain works!” it concludes. Jaunty, no?

As far as I know, this is the first attempt to set a land use code to music, but I'd love to hear if anyone knows of another example!

For Steve Cosson, a founder of the inquisitive musical theater troupe the Civilians, dramatizing this wonky subject led to a fertile multiyear examination of politics, race, democracy, money and community, centered on the Atlantic Yards project in Brooklyn. Titled “In the Footprint,” the show mines the New Yorkiest of obsessions — real estate — to present a layered portrait of a city and a neighborhood changing, sometimes under duress. “Atlantic Yards: The Musical!” it’s not.

The songs in “In the Footprint: The Battle Over Atlantic Yards” (the creators call them blogosongs) serve not as emotional showstoppers but as commentary and explanation — the Greek chorus of the digital age. The show, which begins previews at the Irondale Center in Fort Greene, Brooklyn, on Friday, and opens on Nov. 22, is based on interviews with business owners, neighbors, politicians, bloggers and activists touched by Atlantic Yards, the developer Bruce Ratner’s divisive project to reconfigure 22 acres of urban landscape in Brooklyn, displacing scores of residents and small businesses in the process.

There are so few examples of artistic effort based on land use law.  If you're in New York during the run, take it in and send us a review!

Jamie Baker Roskie


November 11, 2010 in Development, Economic Development, Eminent Domain, Humorous, New York, Planning, Politics, Property, Property Rights, Race, Redevelopment, State Government | Permalink | Comments (0) | TrackBack (0)

Veterans Day

You might be surprised at how much land use and veterans' issues have been intertwined over the course of American history.  From land grants and westward expansion, to the expansion of education, to the postwar expansion of suburbia, many federal, state, and local policies have tied land use and development to an appropriate public concern for veterans; the results have been mixed.  I wrote a post on these issues last year; you can read it here.  

This year, we have at least one new land use/veterans issue to add: the U.S. Supreme Court decided Salazar v. Buono, which dealt with a land swap by Congress to protect a monument to servicemembers killed in World War I, placed on public land by the Veterans of Foreign Wars, that was in the shape of a cross.  Read our post here, and SCOTUSblog's resource page, and check out Christoper Lund's Northwestern Colloquy article on the case.

A happy Veterans Day to all, with gratitude to those who have served in harm's way.  

Matt Festa

November 11, 2010 in California, Caselaw, Constitutional Law, Federal Government, First Amendment, History, Property, Scholarship, Suburbs, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

Smart Growth Achievement Awards

From the Office of Sustainable Communities at EPA:

2010 National Award for Smart Growth Achievement

Date: Wednesday, December 1, 2010
Time: 3:00 PM - 5:00 PM
Location: National Building Museum 401 F Street NW, Washington, DC 20001

The National Award for Smart Growth Achievement recognizes communities
that use the principles of smart growth to create better places. This
annual competition is open to public- and private-sector entities.

Please join us at the National Building Museum in Washington, D.C., on
Wednesday, December 1, 2010, from 3:00 to 5:00 p.m. to celebrate the
winners of the 2010 National Award for Smart Growth Achievement. One
winner will be announced in each of the following categories: Smart
Growth and Green Building; Programs, Policies and Regulations; Civic
Places; Rural Smart Growth; and Overall Excellence in Smart Growth. The
communities honored this year range from a rural coastal area to a
historic reuse project. They show us that if we grow smarter, we can
make America's cities, suburbs, small towns, and rural communities more
resilient to economic and environmental challenges and more beautiful.

After the awards ceremony, representatives from each of the five
award-winning communities will participate in a panel discussion that
will include challenges they overcame; partnerships with government,
nonprofit, and public stakeholders; and lessons learned for other places
hoping to build sustainable communities.

Please RSVP at the National Building Museum's website

Jamie Baker Roskie

November 10, 2010 in Community Design, Development, Federal Government, New Urbanism, Planning, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 9, 2010

Owley on Use of Conservation Easements by Local Governments

Jessica Owley (Buffalo) has posted another informative paper: Use of Conservation Easements by Local Governments, forthcoming in GREENING LOCAL GOVERNMENT, Patricia Salkin and Keith Hirokawa, eds., A.B.A. Publishing, 2011.  The abstract:

This chapter (which will be included in the forthcoming Greening Local Government book published by ABA Publishing and edited by Patty Salkin and Keith Hirokawa) briefly introduces conservation easements, explains how local governments can use them, and discusses the appropriate role and extent of their use. 

Conservation easements are nonpossessory interests in land restricting a landowner’s activities in a way that yields a conservation benefit. Local governments have been on the cutting edge of using conservation easements, engaging with them on multiple fronts. First, local governments hold conservation easements. This enables local governments to enforce individual agreements and prevent landowners from engaging in environmentally destructive practices. Second, as landowners, local governments encumber public land with conservation easements — affirming their commitments to land conservation. Finally, local governments promote conservation easements. By passing laws supporting and funding conservation easements as well as requiring exacted conservation easements for land-use permits, local governments employ mechanisms that increase the number of conservation easements in their communities. 

Conservation easements can protect environmental amenities and deserve praise for their individual nature and ease of establishment. However, conservation easements are static agreements locking in today’s land use preferences and understandings of the natural environment to the potential detriment of future generations with different goals or understandings of the natural world. Furthermore, although praised as an inexpensive method for governments to obtain land conservation, funding necessary for stewardship and enforcement could be significant. As development pressures and understandings of environmental degradation increase, the use of conservation easements by local governments is likely to continue to grow. Local governments should make use of this tool cautiously.

This paper is a helpful resource for practitioners and scholars in understanding the basics of conservation easements.  Along with Owley's forthcoming Stanford Environmental Law Journal piece, Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, it cautions local government officials to be wary of the conservation easement as a panacea in pursuing environmental planning objectives.  

Matt Festa

November 9, 2010 in Conservation Easements, Environmental Law, Local Government, Property, Scholarship, Servitudes, Sustainability | Permalink | Comments (0) | TrackBack (0)

Pierce on Minimizing the Impact of Oil and Gas Production

David E. Pierce (Washburn) has posted Minimizing the Environmental Impact of Oil and Gas Development by Maximizing Production Conservation, from North Dakota Law Review, Vol. 85, p. 759 (2009).  The abstract: 

One oil and gas well results in less environmental impact and surface disruption than two wells. The number of wells required to efficiently develop an oil and gas reservoir can be significantly reduced, while increasing the ultimate recovery of the oil and gas resource, if the reservoir can be developed without regard for the rule of capture. Current oil and gas "conservation" regulation is built around the rule of capture, which creates the legal necessity to be associated with an oil and gas well in order to secure rights in the oil and gas. By shifting the focus of rights in oil and gas reservoirs away from capture rights and toward correlative rights, state oil and gas conservation commissions can better manage development of the oil and gas resource, allowing all interested parties to maximize recovery of their oil and gas resources while minimizing the impact on surface and other natural resources.

Matt Festa

November 9, 2010 in Environmental Law, Oil & Gas, Property, Property Rights, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Summary of Errors Leading to Deepwater Blowout

We've done a fair amount of posting about the Deepwater Horizon disaster.  (See for example here and here.)  Marc Poirer is planning to teach a week-long course at Seton Hall in January on the blowout, and he gave the Environmental Law professors listserv a heads' up to this interesting article.  It summarizes all the errors that lead to a collosal disaster.

More than 100 hours of testimony before a federal investigative panel, two dozen congressional hearings and several internal company reports have brought the genesis of the spill into sharp focus. The record shows there was no single fatal mistake or cut corner. Rather, five key human errors and a colossal mechanical failure combined to form a recipe for unprecedented disaster.

It's a great summary of everything that went wrong.  Thanks, Marc, and good luck with your course!

Jamie Baker Roskie


November 9, 2010 in Clean Energy, Industrial Regulation, Oil & Gas, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, November 8, 2010

Adverse Possession and the Foreclosure Crisis?

This New York Times article, At Legal Fringe, Empty Houses go to the Needy, tells the story of a guy in Florida who seems to be attempting to use adverse possession to take abandoned homes and then lease them for low rent to needy families.  

NORTH LAUDERDALE, Fla. — Save Florida Homes Inc. and its owner, Mark Guerette, have found foreclosed homes for several needy families here in Broward County, and his tenants could not be more pleased. Fabian Ferguson, his wife and two children now live a two-bedroom home they have transformed from damaged and abandoned to full and cozy.

There is just one problem: Mr. Guerette is not the owner. Yet.

In a sign of the odd ingenuity that has grown from the real estate collapse, he is banking on an 1869 Florida statute that says the bundle of properties he has seized will be his if the owners do not claim them within seven years.

A version of the same law was used in the 1850s to claim possession of runaway slaves, though Mr. Guerette, 47, a clean-cut mortgage broker, sees his efforts as heroic. “There are all these properties out there that could be used for good,” he said.

Apparently most of the homes are in foreclosure.  Guerette has taken possession, made some improvements, and is paying the property taxes.  The tenants and the neighbors--at least the ones quoted in the article, who understandably prefer occupied to abandoned houses next door--think he is doing a great thing.  The State of Florida disagrees.  He is being prosecuted for fraud.  

Is this an innovative response to the foreclosure crisis, or is it a scam?  No one likes adverse possession in theory when they first hear about it.  Students always ask, like Jennifer Aniston in Office Space, "so how is that not stealing?"  But of course the justification for AP--we prefer that abandoned land go to someone who will put it to its highest and best use--seems to have some application here.  On the other hand, this certainly isn't a "good faith" trespass under a belief in legitimate title.  The article quotes Florida law prof Michael Allan Wolf, who expresses concern that using adverse possession this way can lead to a serious disruption in chains of title and with the foreclosure process.  And it's not hard to see how this kind of activity could lead to widespread confusion and potential fraud.  

If this idea takes it a little too far, then what can we do about the parallel problems of massive foreclosures, abandoned buildings, and the lack of affordable housing?  Thanks to Scott Rempell for the pointer.  

Matt Festa

November 8, 2010 in Affordable Housing, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Property, Property Theory, Real Estate Transactions, Suburbs, Sun Belt | Permalink | Comments (1) | TrackBack (0)

Sunday, November 7, 2010

Witold Rybczynski Asks Important Questions...

I've been a big fan of Witold's books (like the recent Last Harvest).  This essay--the first in a series for an important topic:  "Do we want urban spaces that are big or small? Spread out or compact? New or old?"

Here's an excerpt from Part One:

The question is not whether we want to live in cities. Obviously, a growing number of us do—otherwise we would not build so many of them. The real question is: In what kind of cities do we want to live? Compact or spread out? Old or new? Big or small?

Judging from the direction that American urbanism has taken during the second half of the 20th century, one answer is unequivocal—Americans want to live in cities that are spread out. Decentralization and dispersal, the results of a demand for private property, privacy, and detached family homes, have been facilitated by a succession of transportation and communication technologies: first, the railroad and the streetcar; later, the automobile and the airplane; lastly, the telephone, television, and the Internet. In addition, regional shopping malls, FedEx, UPS, the Home Shopping Network, and have helped people to spread out. Even environmental technologies—small sewage treatment facilities and micro power plants—have allowed people to live in more dispersed communities than in the past.

This is not simply suburbanization. All the cities that have experienced vigorous population growth during the second half of the 20th century—Houston; Phoenix, Ariz.; Dallas; San Jose, Calif.; Atlanta, Ga.—have grown by spreading out. These are horizontal cities, with generally low population densities, typically fewer than 10 people per acre compared with 15 to 20 people per acre in the older, vertical cities. Horizontal cities depend on automobiles for mass transportation and on trucks for the movement of goods. In a horizontal city, the difference between city and suburb is indistinct. People in both live chiefly in individual houses rather than in flats or apartment buildings, and the houses are organized in dispersed, semi-autonomous planned communities that are different from the urban neighborhoods of the past. Versions of the dispersed city can be found in large cities such as Los Angeles, small cities such as Las Vegas, and in the metropolitan areas surrounding all cities, old and new.

--Chad Emerson, Faulkner U.

November 7, 2010 | Permalink | Comments (1) | TrackBack (0)

Cunningham on Easements and the Environment

McKay Cunningham (Phoenix) has posted Oil and Water: Easements and the Environment.  The abstract:

The age of American environmentalism has arrived. Surveys show widespread public support for preservation policies, open spaces, and natural parks, while reflecting popular disdain for new development of wild lands. Federal and state governments have reacted to public sentiment by adding acreage to national preserves, increasing the budget for agencies tasked with preservation, and by enacting and enforcing pollution laws and regulations. 

Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. This paper addresses the historic and deeply rooted pro-development policy informing American property law. While critical in the country’s infancy, encouraging land use and development through legal constructs is less important and arguably detrimental now. Long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not. 

One area of property law, easements, fully embraces pro-development policies. The legal principles defining express easements, implied easements by necessity, easements by implied grant, and prescriptive easements champion the development of land while disfavoring parties that allow land to remain “idle.” The pro-development policy undergirding common law property tenets lacks a conservation counterbalance. This paper details several approaches that might curb pro-development bias in easement law.

Matt Festa

November 7, 2010 in Conservation Easements, Development, Environmental Law, Federal Government, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Fincham on The Distinctiveness of Property and Heritage

My colleague Derek Fincham (South Texas College of Law) has posted The Distinctiveness of Property and Heritage.  The abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations. 

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

Matt Festa

November 7, 2010 in Historic Preservation, History, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Fanizzo on Separation of Powers, Federal Land Management, and the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, from Environmental Law, Vol. 40, No. 3, 2010 .  The abstract:

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half million acre national monument in southeastern Arizona and ordered the Bureau of Land Management to study whether cattle grazing would harm the significant historic and scientific sites he intended to protect. The Bureau allowed grazing to continue without doing the study. A non-profit conservation group, the Western Watersheds Project, sued the Bureau to implement Clinton’s orders. The group asked the court to exercise its authority under the Administrative Procedure Act to compel agency action unlawfully withheld and set aside arbitrary, capricious, and unlawful agency action. The Bureau responded that judicial review was not available to enforce its compliance. This article argues that courts should enforce the terms of such presidential proclamations when third parties sue the non-compliant agency. The intent of Congress in delegating to the President the ability to act quickly and reserve public lands for certain uses and not others and the broad deference given by the courts to the exercise of presidential discretion at the time of the designation support the application of this judicial review. Set against the backdrop of preserving our national cultural heritage, this case highlights the respective, and at times, overlapping roles of the executive, legislative, and judicial branch in federal land management.

Matt Festa

November 7, 2010 in Agriculture, Federal Government, Historic Preservation, History, Judicial Review, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)