Friday, December 3, 2010
You may have heard that the Obama administration's plans for high-speed rail projects have met with some challenges, most prominently from the incoming Republlican governors of Wisconsin and Ohio. Now comes this breaking news report from The Onion: Obama Replaces Costly High-Speed Rail Plan with High-Speed Bus Plan. Go ahead and check out the video at the link, it's worth it!
Joking, aside, though, there is a serious argument out there that upgraded and expanded intra-city, commuter, and longer range bus routes might be superior in many ways to HSR. Here is a thoughtful analysis with links from Tory Gattis, particularly to Robert Poole's Surface Transportation Newsletter for the Reason Foundation.
NYU’s Furman Center for Real Estate and Urban Policy released, for the first time, a quarterly update on six key indicators of housing market performance, based on a variety of administrative data sources. The Furman Center found that while the volume of home sales declined by 14% from the second to third quarter of 2010, it remains higher than it was in the third quarter of 2009. Citywide, prices have stabilized, increasing slightly between the second and third quarters of 2010, and changing little since the same period last year. Prices in the third quarter of 2010 were 22% lower than they were at the peak of the market.
NYU’s Furman Center for Real Estate and Urban Policy released, for the first time, a quarterly update on six key indicators of housing market performance, based on a variety of administrative data sources.
The Furman Center found that while the volume of home sales declined by 14% from the second to third quarter of 2010, it remains higher than it was in the third quarter of 2009. Citywide, prices have stabilized, increasing slightly between the second and third quarters of 2010, and changing little since the same period last year. Prices in the third quarter of 2010 were 22% lower than they were at the peak of the market.
There's lots of great data and analysis in the full report.
John Mixon (Houston) has posted Fannie Mae/Freddie Mac Home Mortgage Documents Interpreted as Nonrecourse Debt (with Poetic Comments Lifted from Carl Sandburg), from the California Western Law Revew. The abstract:
Virtually no home mortgage borrower who has not had (1) extensive professional training, or (2) prior experience as a foreclosed borrower, understands that home mortgages include the potential of a hovering judgment lien for deficiency after foreclosure. This lack of understanding makes any pretense of consent to liability for deficiency after foreclosure pure rationalization. Law acts in complicity with lenders to commit virtual fraud when it imposes this consequence on home buyers without full disclosure and real, intelligent consent.
The language problem is not lack of formalistic disclosure of the terms of the home loan itself. Virtually all home mortgage transactions provide borrowers with disclosure statements that spell out the full terms of their loans. But the consequence of lingering liability after foreclosure, which can be far worse than a misstated interest rate, is not disclosed (and perhaps cannot be disclosed meaningfully) to lay borrowers. Even the standard FNMA/GNMA documents are ambiguous and subject to interpretation as non-recourse obligation. These documents dominate the field, and their uniform covenants apply throughout the United States' mortgage market. This article proposes that they be re-read and interpreted as not imposing recourse liability, thereby eliminating deficiencies after foreclosure for most homeowners.
Thursday, December 2, 2010
The idea of making walkable and bikeable communities is growing in popularity. Part of the appeal is the sustainability and health benefits that physical activity offers.
Well, how can a sustainable option like biking get even more sustainable?
Make the bikes out of bamboo...a prototype project here in one of Alabama's rural counties.
Chad Emerson, Faulkner U.
David S. Yellin (JD candidate, Georgetown) has posted Masters of Their Own Eminent Domain: The Case for a Reliance Interest Associated with Economic Development Takings, forthcoming in the Georgetown Law Journal, Vol. 99 (2011). The abstract:
When the Supreme Court, in Kelo v. City of New London, held that economic development was a valid justification for the use of eminent domain, there was a massive public outcry. In the resulting backlash, many communities enacted legislation aimed at restricting economic development takings, but most of these reforms were largely symbolic and had little or no actual effect on such takings. This Note accepts the reality that economic development takings will inevitably occur, and identifies the greatest threat associated with such takings as the risk that when they do they may cause more harm than good. For example, after the failure of the development project at issue in Kelo, Pfizer has recently announced that they will be shutting down their facility in New London, Connecticut, taking 1,400 jobs with them. As a result, the price New London paid by condemning the homes of its residents has been for nothing and the city is left even worse off than before.
This Note analogizes the failures of eminent domain takings to some of the harms that arose during the rash of plant shut-downs in the 1980s and early 1990s. Faced with the loss of the foundations of local economies, municipalities and scholars alike tried to come up with ways to protect the reliance that communities place in economic actors. This Note argues that although many of these proposals were not suitable for responding to the problems of plant closings, they are well-suited to use in the takings context. To that end, I discuss key differences between the two scenarios that justify applying some of the most progressive of these proposals in the takings context. Specifically, I propose that courts recognize a reliance interest, similar to an easement, which gives a municipality a legally enforceable right against corporate entities that benefit from economic development takings.
December 2, 2010 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Judicial Review, Local Government, Property Rights, Remedies, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 1, 2010
We went to Oak Creek Canyon, north of Sedona, Arizona over the holiday. It was beautiful. On the drive back to Phoenix, I insisted (over my wife's rolling eyes) that we visit Arcosanti. An experimental town founded in 1970, Arcosanti aspires to fuse architecture with ecology.
The town seeks to provide social interaction and accessibility of urban living with ecological goals ranging from spare resource use to environmental integratoin. The project-town rests on 25 acres of a 4,060 acre land preserve. Although originally envisioned for 5,000 people, Arcosanti's actual population varies between 50 and 100 people. The master plan envisions a massive complex, called Arcosanti 5000, that would dwarf the current buildings.
Despite Arcosanti's meager population, the underlying land use philosophy - arcology - is intriguing. Although certainly not new, "archology" is Paolo Soleri's concept of cities which compact human necessities in marked contrast to urban sprawl with its inherently wasteful consumption of land, energy and time. Instead of isolating people from each other and the community, the "complexification and miniaturization" of the city encourages and relies on community.
According to promomtional materials,
- an archology would need about two percent as much land as a typical city of similar population
- Archology eliminates the automobile from within the city
- The multi-use nature of archology design would put living, working and public spaces within easy reach of each other, and
- walking would be the main transportation within the city
- "Arcosanti is probably the most important experiment undertaken in our lifetime"
Our visit to the town was uninspiring. It did not meet the rhetoric above. The bronze and ceramic wind bells Soleri sells were nice, but the edifices themselves were ill kept and uninspiring. We did not get a tour of the entire town, so perhaps judment should be reserved.
Still, why only 50 residents (mostly students /educators) in a "city" that envisioned 5,000 way back in 1970? Why does Soleri himself live in Scottsdale, Arizona (a sprawling well-to-do suburb)? To me it tracks what James McWilliams calls "a problem endemic to modern environmentalism." I agree with McWilliams's suggestion that "concerned consumers are flush with noble intentions, but too often these intentions succumb to external realities."
We're very pleased to welcome McKay Cunningham as a guest blogger for the month of December here on
the Land Use Prof Blog. McKay is an assistant professor of law at the Phoenix School of Law. McKay's teaching and scholarship covers areas from property law to constitutional law to procedure and appellate law. His most recent article is Oil and Water: Easements and the Environment. Given my current home I should also note that McKay has Texas roots! He has great experience and a wide range of academic interests. We all look forward to McKay's blog contributions!
Craig Anthony (Tony) Arnold (Louisville) served last spring as a visiting professor at the University of Houston, where he organized an excellent symposium on Climate Change, Water, and Adaptive Law, with participation from Robin Kundis Craig, Noah Hall, Dan Tarlock, Elizabeth Burleson, Lea Rachel Kosnick, and Kathleen Miller. Prof. Arnold has recently posted two pieces from the symposium issue, published in the Environmental and Energy Law and Policy Journal, Vol. 5 (2010).
The introductory essay is Law's Adaptive Capacity and Climate Change's Impacts on Water. The abstract:
This is an introductory essay to a symposium on Climate Change, Water, and Adaptive Law, held at the University of Houston Law Center in February 2010 and published in the Environmental and Energy Law and Policy Journal. It contends that changing climate conditions are creating pressures on water law, policy, and management institutions to adapt and questions whether these institutions have the capacity to adapt to climate change. It describes four major effects of climate change as they relate to water resources: 1) precipitation effects; 2) environmental and landscape structural effects; 3) behavioral response effects; and 4) institutional response effects. The essay then describes two articles addressing the dynamics of cross-jurisdictional scale: one by Robin Kundis Craig and one by Noah Hall; two articles addressing cross-sector interrelationships among water and energy: one by Dan Tarlock and one by Lea Rachel Kosnik; and three articles analyzing the adequacy and adaptability of existing trends in decentralized water planning and management: one by Kathleen Miller, one by Tony Arnold, and one by Elizabeth Burleson. The essay then comments on the themes of fragmentation and integration in the context of the systemic evolution and emergence of water law institutions.
Prof. Arnold's own contribution to the symposium is his article Adaptive Watershed Planning and Climate Change. The abstract:
Few phenomena make the case for adaptive ecosystem management quite as well as climate change, the hydrological effects of which will upset settled expectations and require water institutions to adapt. The effects of climate change will be felt at multiple hydrological, geographic, and institutional scales that transcend specific water sources or political and legal jurisdictions. Moreover, the effects will be uncertain, complex, and frequently changing. Thus, water resources should be managed at watershed scales, and this management should use the adaptive management methods of flexibility, experimentation, and learning through iterative processes of managing environmental conditions and programs.
However, the adaptive ecosystem management concept has had the unfortunate effect of de-emphasizing or even rejecting the role of planning in shaping the relationships between human actions and ecological conditions. Too little attention has been given to the role of planning in adaptation and ecosystem management. A concept of "adaptive planning" is not only consistent with adaptive ecosystem management, but could actually improve adaptive ecosystem management methods and the capacity of institutions to engage in adaptive ecosystem management effectively. Moreover, a growing number of watershed plans are exhibiting some characteristics of adaptive planning, particularly with respect to the effects of climate change on watersheds and water resources.
This article explores the role of adaptive watershed planning in adapting to climate change. Adaptive watershed management requires the use of adaptive planning methods, not merely ad hoc, reactive experimentalism and incrementalism. Without some process of planning, Charles Lindblom’s “science of muddling through” becomes "the science of drifting along." Adaptive planning gives some direction and focus to adaptive ecosystem management activities. Furthermore, adaptive watershed planning can improve not only adaptive watershed management methods, but also the content and effectiveness of watershed plans themselves. If watershed plans are to be useful, they must contemplate the uncertainties associated with climate change and its effects.
In addition to describing the theory and features of adaptive planning and applying adaptive planning principles to watershed planning and management, this article also explores examples of watershed plans in the U.S. and Canada that have addressed climate change and analyzes a number of issues in adaptive watershed planning, including barriers to, and opportunities for, the increased and improved use of adaptive watershed planning to improve the capacity of watershed institutions to adapt to climate change.
Check out all of the articles from this interesting event when they are published by Environmental and Energy Law & Policy. It was great to have Tony Arnold down in Houston last spring to organize this event, with the side benefit of bringing him over to South Texas for our Land Use in the Unzoned City forum!
Tuesday, November 30, 2010
William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12. The abstract:
On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.
November 30, 2010 in Agriculture, Comparative Land Use, Eminent Domain, Environmental Law, Historic Preservation, History, Property, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)
Craig on Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses
Robin Kundis Craig (Florida State) has posted Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses on the Gulf Coast, forthcoming in the Journal of Land Use & Environmental Law. The abstract:
The states bordering the Gulf of Mexico - Texas, Louisiana, Mississippi, Alabama, and Florida - face numerous challenges in coastal management along those shores, one of which is rising sea levels. Given the threats that sea-level rise and associated climate change impacts pose to public health and welfare, increased state and local government action in and regulation of the Gulf coast is virtually inevitable.
However, government action regarding the Gulf coast that limits or otherwise affects private property rights leaves state and local governments vulnerable to claims that those governments have taken private property in violation of the federal Constitution. Such vulnerability, however, is not absolute. As the U.S. Supreme Court recognized in Lucas v. South Carolina Coastal Council, no unconstitutional taking of private property occurs if the property owner’s claimed rights were never part of that owner’s title to begin with. As a result, certain “background principles” of state property law shield governmental action from taking liability, even if that action interferes with or prohibits a landowner’s desired use of the property.
This Article examines two of these “background principles” of state property law - state public trust doctrines and the doctrine of public necessity - to assess their abilities to insulate state and local coastal regulation from landowner claims of regulatory takings in the Gulf of Mexico states. It concludes that state and local governments in Gulf states generally have more tools to protect the coast than are generally acknowledged and that their defenses to coastal takings claims will become increasingly stronger as sea-level rise and coastal deterioration emerge as true emergencies and public health crises.
I'm a strong believer in the idea that our country's decision to invest roughly $200 billion in the interstate was one of the first missteps we took on the road toward the unsustainable sprawl set-up we have today.
This article further bolsters my view of that. Indeed, it appears that as we were investing in miles upon miles of concrete as our near exclusive national approach to moving people and products, many other developed countries (including a recently defeated Japan) were opting to incorporate effective rail travel as a key component of their transportation strategy.
The real kicker is that many of these nations were actually using American technology to do this:
So carelessly tossed away by our policymakers and politicians, the American streamliner did not simply die during those dismal decades of the 1950s and 1960s. Instead, it rose from the ashes as its key technological features moved overseas, welcomed by a visionary group of railroaders.
This is what happens when you starve a business for 60 years. It becomes stunted. Our passenger rail system is stunted today not because of some inevitable law of economics or natural outgrowth of competition. It’s stunted because of longstanding government policy that thoughtlessly, absentmindedly, let some wonderful American-made technology slip away.
Now, granted, the United States is larger than most of these countries (though, today, China is building fast, advanced trains across wide swaths of its landscape). So, connecting everywhere in the U.S. would be difficult. However, that doesn't relieve the fact that we could have (and possibly still could) adopt a deliberate strategy of connecting major metro areas with fast trains that are much more energy efficient.
Chad Emerson, Faulkner U.
Monday, November 29, 2010
The Wall Street Journal's Economics Blog, in a post by Mark Whitehouse, has as its "number of the week" the number 492, as in the average of 492 Days from Default to Foreclosure.
The average borrower in the foreclosure process hadn’t made a payment in 492 days as of the end of October, according to LPS. That compares to 382 days a year ago and a low of 244 days in August 2007.
In other words, people who default on their mortgages can reasonably expect, on average, to stay in their homes rent-free more than 16 months. In some states such as New York and Florida, the number is closer to 20 months.
Some may not be inclined to shed tears for the banks, who recently had to slow down their already-backlogged foreclosure process even more due to the revelations of robo-signing, but Whitehouse notes that this statistic could also provide a powerful incentive to other homeowners:
Millions of Americans still are paying their mortgages even though they owe more than their homes are worth. The more banks’ backlog grows, the more likely they are to join it, adding to the already giant pile of foreclosures weighing on the housing market.
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- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
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- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- What to make of the fierce new debate over the efficacy of California's energy codes?
- The W&L Top 100 Law Review Rankings and the Land Use Law Scholar
- CFP: 2015 Future of Places Conference (lead-in to Habitat III) in Stockholm: Deadline of April 15
- Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under
- Interior unveils final rule governing fracking regulations on public lands