Saturday, December 11, 2010
Wisconsin's state capital, home to the 2011 Congress for the New Urbanism, is considering the idea of narrowing a key street in the hope that this skinnier street will enhance pedestrian safety:
Under the plan endorsed last week by the city’s Board of Public Works, six blocks of Williamson Street, from Blount to Baldwin streets, will be whittled down from 48 feet to 44 as part of a project that also includes resurfacing the street from Baldwin to Thornton Avenue. “It’ll work, but it will be tighter,” David Dryer, the city’s director of traffic engineering says of narrowing the street.
It’s not unusual for the city to narrow vehicle traffic lanes on a street through a “reallocation” of street width to allow more space for bicycles or to accommodate pedestrians at crossings, he says. But the planned narrowing of Williamson Street is an actual reduction of the blacktop on an arterial street moving traffic through the near east side that is barely standard width now. It would bring the width of the street down from 48 feet to allow an additional two feet of terrace on each side, paring the vehicular traffic lanes from the standard 11 feet wide to 10 feet in each direction and the parking lanes on each side of the street from 13 feet to 12.
Dryer predicts the narrower vehicle lanes won’t have much impact on the flow of traffic for the 18,000 to 22,500 vehicles a day moving along different segments of Williamson Street. “What it is going to do is put more pressure on parking maneuvers and the hardy bicyclists who use the street,” he says. “It’s a trade-off. The neighborhood wanted the wider terrace and the benefits that provided.”
Proponents of the narrower street say it would bring that segment of Williamson back to what it was before a widening project decades ago. They speak of a more intimate street, with the movement of vehicles slowed by a smaller scale and traffic islands.
Skinny streets are one of the most effective ways to slowing down traffic which, in turn, promotes pedestrian safety in urban areas designed for pedestrian activity. The reason is that it forces drivers to be more cautious and aware of their surrounding because of the "tightness". All in all, a much more effective approach than simply putting up a speed limit and hoping that the threat of a speeding ticket slows drivers down.
Read the whole story, here.
Chad Emerson, Faulkner.
Friday, December 10, 2010
Marijuana dispensaries are growing like weeds. The recent ABA article, "Up in Smoke," chronicles some of the chronic problems plaguing states that have legalized medical marijuana. This Blog has already noted Kansler and Salkin's article on zoning law and regulation of "dispensaries."
The fact that municipalities have regulatory power through zoning is part of the problem. Of the fourteen or so states that have legalized medical marijuana, none have a comprehensive regulatory scheme. California, for example, passed a very generalized statute, but local counties and municipalities are left with no guidance on the particulars. Vanderbilt Law Professor, Robert Mikos, posits that "no one has any idea how many medical dispensaries are out there [in California]." To reign in dispensaries, Los Angeles recently cut the number of allowed medical marijuana dispensaries to seventy.
Now that Arizona voters have approved (this past November) medical marijuana, the problem of uniformity and new zoning regulations again arises. Perhaps Justice O'Connor's justification for federalism -- that states serve as laboratories -- rings true for Arizona. In other words, Arizona may have learned from California's mistakes. A model ordinance from the League of Arizona Cities and Towns at least gives some guidance to Arizona municipalities as they struggle to implement the state's newest law.
Thursday, December 9, 2010
A recent report entitled "Megacities of the Move" offers an interesting look into how people currently--and in the future may--move around and among cities. This topic obviously affects land use and development patterns as the great battle between increased and decreased density wages on.
Here's an excerpt:
Exemplifying the important of dense cities organized around transit that discourage sprawl, in the U.S., the modal share of individual car use for cities decreased ever so slightly from 2000 to 2009. But this change occurred only in older and denser cities.
But still, according to the “Megacities on the Move” report, vehicle ownership currently stands at one billion cars and this figure is expected to grow to two billion in the next few decades. Smart growth patterns along with policy are needed to create attractive alternatives to driving.
A Menu of Choices and Incentives Not To Drive
Allocation of road and parking space for public space and public transit alternatives are important. For example, bus rapid transit (BRT) uses existing road infrastructure for buses that run on dedicated lanes. This component of BRT makes the systems cheaper to implement, but also takes space away from individual vehicles and uses it for mass transit. If usage of BRT is high, this frees up more road space for cars.
For the entire article, click here.
Chad Emerson, Faulkner.
Wednesday, December 8, 2010
Ashira Ostrow (Hofstra) has posted Process Preemption in Federal Siting Regimes, forthcoming in the Harvard Journal on Legislation, Vol. 48 (2011). The abstract:
Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states, and the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by a multi-jurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. To that end, Congress has experimented with a variety of preemption regimes aimed at compelling local governments to site nationally relevant facilities, such as radioactive waste disposal facilities and telecommunication towers.
This Article explores the spectrum of federal preemption options, ranging from federal delegation, empowering states to independently design and implement siting regimes, to unitary federal preemption, vesting siting authority in a federal administrative agency and displacing traditional state and local land use authority. In particular, this Article identifies an innovative approach to facilities siting, termed “Process Preemption.” In a Process Preemption regime Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local land use regulators. This Article argues that Process Preemption has the potential to aid in federal siting schemes because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance, of controversial siting decisions.
Prof. Ostrow's article is the co-winner of this years AALS scholarly paper competition, with her presentation to be featured at the January meeting in San Fransisco. Be sure to check it out!
Richard A. Epstein (NYU, Chicago, and Stanford--Hoover Institution) has posted Playing by Different Rules? Property Rights in Land and Water, from EVOLUTION OF PROPERTY RIGHTS RELATED TO LAND AND NATURAL RESOURCES, Lincoln Institute, 2010. The abstract:
This article examines both the similarities and differences between the law of land and water in both a private law and constitutional law setting. The first critical difference is that the nature of the two resources differs enough such that exclusive rights for occupation usually sets the right framework for analyzing land use disputes, while a system of shared, correlative duties work best for water. Once these baselines are established, it follows that an accurate rendition of the constitutional law issues necessarily rests on the proper articulation of private law rules of adjudication. Unless those efficient private rules are used as a baseline for constitutional adjudication, it becomes impossible to explain which government actions result simply in a "mere" loss of economic value and which government actions generate losses that require compensation. Parties can engage in wasteful political arbitrage without limitation.
In dealing with the private law issues, the first step is to develop principles of parity between private claimants, to the extent that this approach is physically possible. The second step then picks the set of rules that maximizes the overall utility of all parties concerned, subject to the parity constraint. This system must yield to reasonableness considerations when the conditions of physical parity cannot be satisfied, which covers all cases of dispute between upper and lower owners of land, as well as upstream and downstream riparians. In both these settings, the objective is to create, whenever possible, rules that treat the last element of loss to one party equal to the last element of gain of the next.
Using these natural law baselines produces by and large efficient results in private disputes. The rejection of these rules in the takings context in both land and water cases yields the opposite result, by conceding far too much power to state authorities in both land and water cases. It is no mistake that the modern law of regulatory takings for land, as developed in the 1978 Penn Central case, explicitly rests on the same intellectual confusions about property rights and economic losses that underlie the 1944 Willow River case, dealing with water rights. The only rationalization of both areas of law requires that the constitutional protection of private property start with the definitions of private property that have worked so well in practice under the natural law traditions of private law.
Patricia Salkin will publish a bibliography of all land use articles from 2010 in the Zoning and Planning Law Handbook for 2011:
This is a great service for all of us, so help her out, and make sure you get credit for your work! You can click below to expand this blog entry, where I've pasted the draft list, and scroll down to make sure you're not being left out! Or, you should be able to open the .pdf file here: Download Prof Salkin 2010 LU Bilbiography draft.
Tuesday, December 7, 2010
Thomas W. Mitchell (Wisconsin, Law), Stephen Malpezzi (Wisconsin, Real Estate & Urban Economics), and Richard Green (USC, Lusk Center for Real Estate) have posted Forced Sale Risk: Class, Race, and The 'Double Discount', Florida State University Law Review, Vol. 37 (2010). The abstract:
What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale conditions. This analysis makes it clear that forced sales of real or personal property are conducted under conditions that are rarely likely to yield market value prices. In addition, the Article addresses the fact that judges and legal scholars have utilized a flawed economic analysis of forced sales in cases that often involve property that is owned by low- to middle-class property owners in part because those who are wealthier own their property under more stable ownership structures or utilize private ordering to avoid the chance that a court might order a forced sale under the default rules of certain common ownership structures. The Article also raises the possibility for the first time that the race or ethnicity of a property owner may affect the sales price for property sold at a forced sale, resulting in a "double discount," i.e. a discount from market value for the forced sale and a further discount attributable to the race of the property owner. If minorities are more susceptible to forced sales of their property than white property owners or if there does exist a phenomenon in which minorities suffer a double discount upon the sale of their property at a forced sale, then forced sales of minority-owned property could be contributing to persistent and yawning racial wealth gaps.
Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument. We've mentioned the land use aspects of the Salazar decision before. Dolan's abstract:
This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.”
Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.
One danger of the continuing downturn is that it becomes a permanent economic correction. This would likely mean a fundamental reconfiguring of city budgets--a shrinking bottom line that would result from decreased buying (reduced sales tax revenue) and decreased real estate values (reduced property tax revenue).
Implicit in such a change would be a reduction in public planning and development expenditures.
A recent Citiwire article outlines the challenge:
Cities’ revenues will plunge sharply as property taxes, in their first year of recession-impacted reassessments, get set to decline deeply in 2011. Local government fiscal shortfalls may total $83 billion, which the League of Cities estimates may force up to 500,000 staff reductions. Basic city services will shrink. Infrastructure projects will get cancelled or postponed.
These are hard times for America’s local governments. Economists may declare the Great Recession is “over,” but localities see a different picture. The federal stimulus monies that helped so many of them balance their budgets runs out December 31. So does Washington’s two-year old “Build America” bond program, which has made local infrastructure borrowing more affordable.
Read the entire article, here.
Chad Emerson, Faulkner
The U.S. Supreme Court granted cert on Monday to hear American Electric Power Company, Inc. v. Connecticut. The case, on petition from the Second Circuit, was brought by several states against the entities they contend are the leading causers of global warming in the U.S. It hasn't gone to trial yet. What's significant about the case--both as a matter of legal theory and policy--is that the theory of the case is based on nuisance. Via SCOTUSblog, a statement of the issues:
Issue: (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)
Plain English Issue: Whether federal law allows states and private parties to sue utilities for contributing to global warming. (Sotomayor, J., recused.)
Again, what's implied in this issue statement is that the case is based on (federal) nuisance (common) law. You can read an analysis from Lyle Denniston on SCOTUSblog (scroll down a bit), and view the links to the briefs, orders, and amici at SCOTUSblog here. There are lots of conlaw and administrative law bigwigs and interest groups on both sides of what will likely be an important case.
Patricia Lane (Sydney) has posted An Unholy Alliance – Combined Federal/State Impacts on Property Rights in Australia. The abstract:
The Australian Constitution contains a guarantee that Federal laws for acquisition of property must provide for compensation on ‘just terms’. The Constitutions of the Australian States contain no such guarantee of ‘just terms’ compensation for State government acquisition of property. State Governments, however, are the polities with the primary responsibility for land regulation, including land titles, land management, and regulation of the exploitation of land-based resources. The Federal Government has to deal with cross-state environmental and land management issues, such as water allocations, land salinity, and protection of threatened and protected species, and to deal with the challenges of climate change, in a way that recognises and respects the separation of powers between the Federal and State governments. To what extent can the Federal government act in concert with the States to terminate resource exploitation rights, or ordinary land-use rights, in a way that does not require compensation on just terms for the holder of those rights be compensated on just terms? This paper examines the extent of State and Commonwealth obligations to compensate persons whose property rights in land or resources are curtailed or sterilised by regulatory mechanisms directed to resource security or environmental protection, in the light of recent High Court decisions on the acquisition power.
December 7, 2010 in Comparative Land Use, Constitutional Law, Environmental Law, Federal Government, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Water | Permalink | Comments (0) | TrackBack (0)
Monday, December 6, 2010
Uma Outka (Florida State) has posted The Renewable Energy Footprint, forthcoming in the Stanford Environmental Law Journal. The abstract:
Renewable energy is widely considered essential to climate change mitigation, and policies favoring renewable energy are finding their way into law at all levels of government. With the shift toward renewable energy comes the potential for staggering land impacts – many millions of acres may be consumed to meet demand for electricity and fuel over the next 20 years. To conservationists’ dismay, the more renewable energy we use, the more land we need. This article is concerned with two primary questions: What are the implications of renewable energy development for land use and land use law, and how might the land use context inform emerging energy policy?
Siting power plants and transmission lines is notoriously difficult, and renewable energy has proved no exception. As investment in the sector has grown, so has dissatisfaction with existing siting frameworks. This perceived inadequacy has led to a flurry of siting-related law and policymaking tailored to large-scale renewable energy infrastructure. So-called NIMBYs opposing renewable projects are derided for hindering the green economy. Almost reflexively, we hear, it’s a “trade-off”: shrink the carbon footprint, grow the land use footprint.
This article rejects the trade-off reflex as counterproductive for both causes – it presents an often false choice that obscures legitimate land use concerns and slows renewable development. Instead, our focus should be on deliberately crafting law that avoids needless compromise wherever we can. This perspective demands a far greater integration of energy policy and land use law. To date and across the board, regulatory apparatus for siting is almost exclusively fixated on site-specific land use. Although this remains important, it reflects a worrisome myopia given the land impacts at stake. Accordingly, I argue, cumulative land impacts should be a central consideration in the development and implementation of energy policy.
Well it's not exactly "land" use, since the Sun is a ball of fiery gas, but it is a key player in the status of the Earth's land and ecology, and the issue involves property rights, so check out this story: Spanish Woman Claims Ownership of the Sun:
MADRID (AFP) – After billions of years the Sun finally has an owner -- a woman from Spain's soggy region of Galicia said Friday she had registered the star at a local notary public as being her property.
Angeles Duran, 49, told the online edition of daily El Mundo she took the step in September after reading about an American man who had registered himself as the owner of the moon and most planets in our Solar System.
There is an international agreement which states that no country may claim ownership of a planet or star, but it says nothing about individuals, she added.
"There was no snag, I backed my claim legally, I am not stupid, I know the law. I did it but anyone else could have done it, it simply occurred to me first."
Apparently she plans to start charging a fee (a special assessment?) to all users of the Sun. So prepare to either stay indoors forever (and ditch your solar panels) or pay up. When I get the information about where to send your checks, I'll pass it on. Thanks to Lyle Higginson for the pointer.
Elisa Morgera (Edinburgh) has posted Introduction to European Environmental Law from an International Environmental Law Perspective, forthcoming in INTERNATIONAL ENVIRONMENTAL LAW: AN ANTHOLOGY, T. Chowdhury, ed. The abstract:
This contribution illustrates the development of the environmental law of the EU from an international environmental law perspective. It highlights the external and internal dimensions of EU environmental law and their interaction. It also outlines the role of the EU institutions in the development and implementation of EU environmental law, as well as the objectives and principles of the EU environmental law, focusing specifically on environmental integration and sustainable development. It concludes by pointing to some of the present challenges facing EU environmental law.
Homeowners weren't the only ones pushed underwater when the housing bubble busted. Developers, too thrived on their clients' seemingly endless access to large loans. When the well dried up and property values sunk below loan obligations, builders reeled.
But not to fret. We are a country of creative financing. Increasing numbers of developers are quietly inserting a resale fee -- a covenant of sorts -- into the original sales agreement. These resale fees (also known as reconveyance fees, capital recovery fees, residential transfer fees, and transfer fee covenants) generally charge 1% every time the home is resold. The 1% fee is paid by the seller or the buyer at the time of closing and is required every time the property changes hands, often for 99 years.
Someone selling a home for $400,000, for example, would have to pay the original developer $4,000. If the same home sold again two years later for $650,000, the second seller would have to fork over $6,500 to the developer, and so on. Even if a home declines in value, the seller still must pay the 1% fee.
If you don't think this passes the smell test, you're not alone. "We believe that transfer fees are illegal, and if you retain us, we will fight to have them refunded to you," boasts a law firm's web page. In fact, a few states (see e.g., Arizona, A.R.S. § 33-442; Minnesota, M.S.A. § 513.74) recently restricted transfer fees by statute. For the states that have not done so, beware, the transfer fee is evolving. At least one real estate financing firm is trying to securitize these fees to be bought and sold on Wall Street.
Sunday, December 5, 2010
From Patricia E. Salkin (Albany) and John R. Nolon (Pace) comes news of their new book, Climate Change and Sustainable Development Law in a Nutshell. The synopsis:
This new Nutshell comprehensively explores international, federal, state, and local laws and policies regarding sustainable development and climate change management. It traces the historical development of sustainable development and climate change law, showing that they appeared on the world stage at the same time and illustrating how they can be best understood, implemented, and practiced as a single body of law and policy.
The book illustrates the initiatives taken by all levels of government to achieve sustainable development, showing how these initiatives provide important opportunities to manage, mitigate, and adapt to climate change. The Nutshell explains how the U.S. legal system, particularly its reliance on the land use authority of local governments, fosters greenhouse gas reduction, energy conservation, and sustainable patterns of growth, including energy-efficient and sustainable buildings, the use of renewable energy resources, the protection of sequestering open space, and the adaptation of buildings and communities to sea level rise and natural disasters.
Climate Change and Sustainable Development Law in a Nutshell provides the international and national context for this bottom up approach. It illustrates how national and state governments can motivate 40,000 local governments in the U.S. to use existing authority and to adapt effective local initiatives already in place to both mitigate and adapt to climate change. This is presented as a complement to other international and national strategies for climate change management.
As one of dozens of examples, the Nutshell explains that local governments in most states are charged with enforcing the energy construction code and that, in many states, they have the power to enhance that code to achieve at least 30% greater efficiency in newly constructed and substantially renovated buildings. The building industry will provide millions of new homes and billions of square feet of nonresidential buildings to keep pace with our increasing population. Buildings consume the lion's share of all electricity generated and are responsible for over a third of carbon dioxide emissions. Some predict that two-thirds of the buildings in existence at mid-century will be built between now and then. The new International Green Construction Code, issued by the International Codes Council, contains techniques for extending this energy saving strategy to existing buildings.
The Nutshell also explains how localities can reduce their carbon footprint through transit oriented development and promoting renewable energy strategies, both of which depend on local planning and land use regulation. While grander schemes are stuck for the time at the federal and international level, researchers struggle to keep up with the task of identifying and analyzing progress of this sort on the ground.
The Nutshell covers the Rio Accords, the Istanbul Declaration on Human Settlements, the Johannesburg World Summit on Sustainable Development, and the 2005 and 2010 Millennium Ecosystem Assessment reports. These illustrate that the devolution of some legal authority to attack the full range of problems that hinder sustainable development is built into international agreements and the law of other nations. The book notes that the IPCC is considering including chapters on Human Settlements and Infrastructure in the Fifth Assessment Report.
Sounds great. Law professors can receive comp copies of the nutshell by calling 1-800-313-9378.