Friday, February 5, 2010

"An erogenous zoning violation"

I really tried to come up with my own equally clever title, but I could not think of anything better than the "erogenous zoning violation" caption that the Washington Post came up with in an article published today.

The protagonist of the story, Paul Pickthorne, was cited for commercial activity in a residential zone.  Ordinarily, this citation would not make the newspaper.  Pickthorne's commercial activity, however, involved BDSM parties or "bondage and discipline, dominance and submission, sadism and masochism."  Party attendees would pay either $20 for a basic ticket, or $50 for a VIP ticket.

One can easily imagine how this sort of activity bothered the neighbors of this "tidy street of mostly 1950s brick ranchers" in Bethesda, Maryland.  The neighbors hoped to resolve the issue quietly by talking to their local government representative.  As this blog entry illustrates, they did not succeed. 

While the neighbors may want to exclude such racy behavior, the BDSM community appears to be quite inclusive.  Susan Wright, founder of the National Coalition for Sexual Freedom, describes the community: "Men, women, transgender, heterosexuals, gays, bisexuals.  Every ethnicity.  White-collar and blue-collar.  It's really very, very diverse -- though we do have an unusually high percentage of lawyers.  I don't know why."

As if a zoning violation involving BDSM and lawyers isn't sufficiently interesting to make the Land Use Prof blog, an additional aspect of this story is that Pickthorne rents a "castlelike 3,600-square-foot McMansion" that likely does not fit in well with the surrounding brick ranchers. I think I could teach a semester's course based solely on this controversy.

Ngai Pindell

February 5, 2010 in Zoning | Permalink | Comments (0) | TrackBack (0)

Sustainable Communities Initiative

From the Obama administration:

February 4, 2010

THURSDAY: Top Obama Administration Officials to Promote Sustainable
Communities, Environmental Justice at Smart Growth Conference

WASHINGTON –  U.S. Housing and Urban Development (HUD) Secretary Shaun
Donovan and Transportation Secretary Ray LaHood will visit Seattle on
Thursday, February 4, to address the 9th Annual New Partners for Smart
Growth Conference. They will be joined by Environmental Protection Agency
Assistant Administrator Mathy Stanislaus.

Speaking before an audience of more than 1,500 key planners, public health
professionals, developers, government staff and elected officials
Secretaries Donovan and LaHood and Assistant Administrator Stanislaus will
discuss the ways their agencies are working together through the Obama
Administration’s Partnership for Sustainable Communities to improve access
to affordable housing, provide better transportation options, and protect
public health and the environment.

“EPA, HUD and DOT are working together to rebuild our foundations for
prosperity, a process that starts with rethinking the ways our communities
grow,” said EPA Administrator Lisa P. Jackson.  “The interagency Partnership
for Sustainable Communities is working to give our communities what they
need to grow and thrive with economic resilience and environmental

“I am proud to announce HUD’s brand new Office of Sustainable Housing and
Communities today,” said Donovan. “Working with our partners at DOT and EPA,
this new office will help us streamline our efforts to create stronger, more
sustainable communities by connecting housing to jobs, fostering local
innovation and building a clean energy economy.”

“Our Partnership really is a new way of doing business in Washington, to
help our nation meet 21st century challenges,” said LaHood. “Working
together, we’re creating jobs to revitalize our economy, while helping state
and local transportation agencies to build the capacity they need to promote
livable, walkable, sustainable communities.”

The President proposed $527 million in his budget for an ambitious new
livability initiative at the U.S. Department of Transportation.  Its Office
of Livable Communities will be a focal point for initiatives such
as expanding transit in low-income neighborhoods.  It will fund a grant
program to help state and local transportation agencies provide more
transportation choices that spur economic development.

The New Partners for Smart Growth Conference, taking place Feb. 4-6, is the
premier national smart growth conference, bringing together experts from a
wide range of disciplines to discuss transportation, housing and urban
development, public health, equitable development, environmental protection,
and other topics. The partnership agencies are working together more closely
than ever before to meet the president’s challenge to coordinate federal
policies, programs, and resources to help urban, suburban, and rural areas
build more sustainable communities.

The New Partners for Smart Growth Conference is managed by the Local
Government Commission, in partnership with EPA, DOT, and other public and
private sponsors.

More about the Partnership for Sustainable Communities:

More on EPA’s Smart Growth Program:

More information on HUD’s Office of Sustainable Housing and Communities:

Jamie Baker Roskie

February 5, 2010 in Clean Energy, Climate, Community Design, Conferences, Development, Economic Development, Environmental Justice, Federal Government, Housing, HUD, Planning, Politics, Race, Redevelopment, Smart Growth, Sustainability, Transportation | Permalink | Comments (0) | TrackBack (0)

New Book on Property "Outlaws"...

Professors Penalver and Katyal have published an interesting new book with Yale University Press:

Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.

More from their website here.

--Chad Emerson, Faulkner U.

February 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Nuisance Law and the Mortgage Crisis

I'm just now getting around to posting a link sent to me by Kermit Lind from Cleveland State's Urban Development Law Clinic.  The page contains materials from their (fairly) recent Public Nuisance CLE.  Professor Lind hopes this information will be helpful to others engaged in nuisance abatement and code enforcement in the context of the mortgage crisis.  CSU's clinic has done a lot of interesting an innovative work in the context of a contracting urban center.  I hope we'll be able to persuade Prof. Lind and his colleague Professor Carol Heyward to share more about their work.

Jamie Baker Roskie

February 4, 2010 in Conferences, Financial Crisis, Housing, Nuisance | Permalink | Comments (2) | TrackBack (0)

Property and Space from a Different Angle

Matt Festa posted last week about a dispute over property falling from space.  Today my architecture source (you know who you are) sent me a link to an article from the NY Times on-line entitled, "Space: It's Still a Frontier."  This article, however, is about an entirely different kind of space - the underutilized, trash-strewn, unmaintained space amid urban greenspace.  Or, abandoned mall space.  Or empty foreclosed homes, block after block.  It's a wide-ranging piece about all the ways in which we fail to use land wisely, and the economic and environmental consequences.  The piece also discusses how creative folks are using GIS and other tools to map those spaces and consider solutions to this land use dysfunction.  I'm not the most visual person in the world (which is weird for a land use lawyer) but I know that the tools the planners, designers and mappers bring to our work is incredibly valuable.  In fact, earlier this week I blogged briefly about some of the excellent work being done by UGA Environment & Design professor Alfie Vick and his students in collaboration with our clients.  You can view video, maps and other resources about their work here.  Their work is invaluable in helping communities envision a better future.

Jamie Baker Roskie

February 4, 2010 in Architecture, Community Design, Development, Environmentalism, New York, Sprawl | Permalink | Comments (0) | TrackBack (0)

May the bells toll . . . in Phoenix?

There seems to be a big church-state land use battle brewing in Arizona.  From the Arizona Republic story Court hears arguments over church bell in Phoenix:

The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday. 
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to  the annoyance of its neighbors. 
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down. 
The bells could ring, she said, but only once a week on Sunday morning.
She also found the church's leader, Bishop Rick Painter, guilty on two counts of  disturbing the peace. He received a 10-day suspended sentence and three years' probation. 
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional. 

The legal conflict centers around a city noise ordinance.  The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory.  In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:

"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited." 

Is the ordinance unconstitutionally vague?  Does targeting church bells infringe on First Amendment free exercise, or RLUIPA?  It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard.  Too much discretion, or necessary flexibility?  That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.

Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core.  The battle is joined and it looks to be an interesting federal case.

UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.

Matt Festa

February 4, 2010 in First Amendment, Local Government, Nuisance, RLUIPA, Sun Belt | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 3, 2010

Florida's Nelson Symposium

Michael Allan Wolf writes to let us know about the upcoming Nelson Symposium at the University of Florida:

The University of Florida Levin College of Law is hosting the Ninth Annual Richard E. Nelson Symposium on Friday, February 12.  The topic of this year’s program is “Local Government Liability Under Federal Law:  Regulating the Sacred and the Profane.”  Outside law professor presenters include Ashira Ostrow (Hofstra) on RLUIPA, Alan Weinstein (Cleveland-Marshall) on adult use zoning, and Asmara Tekle (Texas Southern) on sex offender residency requirements. 

Professor Wolf will be speaking on “How Local Governments End Up Making New Federal Caselaw.”  You can check out the brochure, and if you can make it to Florida (never a bad thing this time of year, especially given what Phil said yesterday), it sounds like a great event.

Matt Festa

February 3, 2010 in Conferences, Local Government, RLUIPA, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Interdisciplinary Problem Solving in Newtown

As you all might have noticed from previous posts, our clients in Gainesville, Georgia are getting a fair amount of press lately.  The client is the Newtown Florist Club, an environmental justice organization working on industrial pollution issues in their neighborhood.  Two nights ago we had a community meeting to discuss the work of our interdisciplinary team on Newtown's problems.  The meeting got a nice write up in the local paper.  Presenters at the meeting included Kathi Wurzel, a toxicologist who's been collecting environmental data and assessing previous health studies for Newtown, Marshall Shepherd, a meteorologist and climatologist studying air quality in Newtown, Alfie Vick, an environmental design professor and landscape architecture whose students have been helping residents envision redevelopment in their neighborhood, and Nik Heynen, a geography professor and community organizer who is currently helping NFC with a community garden project. Rose Johnson-Mackey and Faye Bush of the Florist Club facilitated. The meeting was well attended - close to 60 folks came.  Many attendees seemed to appreciate hearing about the different types of work being done in Newtown. There was a bit of controversy at the end of the meeting, but everything remained civil.  You can't ask for more in a public meeting, I think.

Jamie Baker Roskie

February 3, 2010 in Environmental Justice, Georgia, Industrial Regulation | Permalink | Comments (0) | TrackBack (0)

West Fairview Avenue Charrette...

This week, I'm spending a good deal of time at the planning charrette for West Fairview Avenue here in Montgomery.  The plan is to revitalize the area and, for regulatory purposes, likely use Montgomery's form-based and transect-based code to implement the plan.

I've been fortunate to participate in many charrettes over the last decade.  So far this has been one of the most interesting.  The opening presentation on Monday evening had a packed crowd that was very diverse in geography, race, and socio-economics--a fantastic group of participants.

The week wraps up with a presentation on Friday evening.  Since I'm covering zoning this semester in Property II, I've invited all of the students and a good number of them are coming.  It should be a fantastically-practical learning experience.

If you are interested in more details, you can click here for the City of Montgomery's website for the charrette

Also, here and here (with video) for some earlier coverage.

--Chad Emerson, Faulkner U.

February 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Anderson on being Mapped Out of Local Democracy

Michelle Wilde Anderson (Berkeley) has posted Mapped Out of Local Democracy, forthcoming in the Stanford Law Review.   The abstract:

In the novel Sula, Toni Morrison describes a neighborhood known locally as the Bottom, where the black community lived. It was “the hilly land, where planting was backbreaking, where the soil slid down and washed away the seeds, and where the wind lingered all through the winter.” We know such Bottoms. We have seen neighborhoods forsaken in the levees’ breach, public housing blocks gaptoothed with boarded windows, and floodplain shantytowns for farmworkers. We know of homes on land scarred by contamination or dogged by natural adversity. But across the country are Bottoms of another, less familiar type. On the outskirts of cities and incorporated suburbs across the country, hundreds of high-poverty neighborhoods of color lack rudimentary services like sewage systems, drainage, and streetlights. Integrated economically with city populations but excluded from participatory rights in city government, these unincorporated urban areas bear disproportionate numbers of landfills, municipal utility plants, and freeways that benefit urban populations but threaten local health and depress land values.

What to do with today’s lost neighborhoods? It is the late dawn of the twenty-first century, when integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed by demands. Suing local governments or lobbying them, two of the most important strategies of twentieth century advocacy for social justice, have been weakened by judicial and political hostility to redistributive claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of power among local agencies exert significant influence over unincorporated urban areas specifically and spatial polarization by race and class more generally.

In part a prescription for unincorporated urban areas in particular, in part an exploration of solutions for any problem of metropolitan inequality, Mapped Out of Local Democracy takes stock of today’s tools. It argues for a new priority in metropolitan law and policy: State legislative reforms to empower and reshape county governments to represent regional interests and regional logic in intergovernmental negotiations. Strengthening counties to bargain with other local agencies over matters with redistributive consequences, like annexation, can bring an interlocal perspective to critical local decisionmaking and create a promising corridor for addressing contemporary issues of urban inequality. By bringing counties - our most neglected, under-theorized layer of urban government - into sharper relief, this Article offers a new direction in state and local government law to seek progress on economic and racial polarization in America’s cities.

Matt Festa

February 2, 2010 in Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Call for Papers in Urban Agriculture

Special Topic Call: Best Practices in Urban and Peri-Urban Agriculture Development.

JAFSCD welcomes research or policy briefs, and case studies (up to 2,500 words) and full articles (up to 8,500 words) on best community-development practices related to:

  • Urban livestock management and regulation
  • Urban market gardening and backyard gardening
  • Marketing and value-adding
  • Waste management and reuse
  • Urban farming by immigrant or other special populations
  • Farming on the fringe
Deadline: June 5, 2010
(The deadline may be extended with permission of the publisher.)
Briefs, case studies, and articles should focus on illustrative programs or projects, survey results, literature reviews, and public policy that are related to — but not limited to — land-use planning and regulation, health ordinances or their implementation, training and educational programs, marketing systems or value chains, partnership development, systems approaches, issues of scale, and farm-neighbor relations. We are particularly interested in holistic approaches that combine community and economic development with environmental protection.
More background on this topic is at
Matt Festa

February 2, 2010 in Agriculture, Scholarship, Urbanism | Permalink | Comments (1) | TrackBack (0)

Stevenson on Kelo and IOLTA

My colleague Dru Stevenson (South Texas) has posted IOLTA Problems in the Post-Kelo World, a very interesting paper looking into the question of whether anti-Kelo reform statutes and amendments--targeted at restricting the use of eminent domain for land--might also have an unintended impact on the legality of "takings" of money for IOLTA programs.  The Supreme Court has ruled that IOLTA programs do qualify as takings but do not trigger the federal Just Compensation Clause; new state laws banning private-to-private transfers, though, may be problematic.  The abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Matt Festa

February 2, 2010 in Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Groundhog Day

We all talk about land use, but no one uses the land like a groundhog.  And today Punxsutawney Phil declared: six more weeks of winter.

Happy Groundhog Day!

Matt Festa

February 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Another Interesting Writing Competition...

I guess we all have our niches in life.  For example, here at the Land Use Prof blog, Matt is the guru of finding interesting articles being published on land use issues. 

Maybe my niche can be finding equally interesting writing competitions.   Here's another one in addition to the one I posted earlier this week:

The Planning & Law Division of the American Planning Association announces its 27th Annual Smith-Babcock-Williams Student Writing Competition. The competition, which honors the memory of three leading figures in American city planning law — R. Marlin Smith, Richard Babcock, and Norman Williams — is open to law students and planning students, writing on a question of significance in planning, planning law, land use law, local government law or environmental law.

The winning entry will be awarded a prize of $2,500 and will be submitted for publication in The Urban Lawyer, the law journal of the American Bar Association's Section of State & Local Government Law. In addition to the first prize, the Competition will offer a second place prize of $1,000 and up to two Honorable Mentions of $250. Winners will be announced by September 15, 2010.

--Chad Emerson, Faulkner U.

February 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Rhuks Temitope Ako (Unversity of Hull--School of Law) has posted Nigeria’s Land Use Act: An Anti-Thesis to Environmental Justice, forthcoming in the Journal of African Law, Vol. 53, No. 2, pp. 289-304, 2009.  The abstract:   

Nigeria’s Land Use Act, promulgated in 1978, is perhaps the most controversial legislation in the country. The Act, originally promulgated as a decree and annexed to the country’s constitution, was ostensibly made to nationalize landholding in the country. However, the peculiar impact of the Act on the inhabitants of the Niger Delta region that hosts upstream activities of the oil industry has led to assertions that the Act was made specifically to deprive those inhabitants of the right to participate actively in the oil industry. This article examines the impact of the Act on the right of inhabitants to access justice. It argues that the Act obstructs their rights to environmental justice and is a fundamental cause of the violent conflicts that pervade the region.

Matt Festa 

February 1, 2010 in Environmental Justice, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 31, 2010

Real Estate Writing Competition...

Below is information about a new real estate writing competition from the New York Law School:

The Center for Real Estate Studies and The Graduate (LL.M.) Program in Real Estate at New York Law School present The 1st Annual NYLS Real Estate Law WRITING COMPETITION

Designed to encourage scholarship on all aspects of real estate and land use law, including transactional practice, financing, housing and mortgage law, zoning, condominium and common interest communities, sustainable development and building, international and comparative law, and public policy.

All submissions must be fully cited in Bluebook format. Deadline: April 1, 2010 Prizes: 1st Place - $1000* Honorable Mention - $500 * Winning Entry will also be considered for publication in the New York Law School Law Review.

Open To: Students Enrolled in degrees programs at American and Canadian law schools. Submit: An electronic copy of your article in Microsoft Word Format to

Thanks to Professor Marshall Tracht, the Director of Graduate Real Estate Programs at NYLS for passing this along.

--Chad Emerson, Faulkner U.

January 31, 2010 | Permalink | Comments (1) | TrackBack (0)

Charleston's New Preservation Plan Wins National Award


The City of Charleston's new preservation plan received national recognition recently from the National Trust for Historic Preservation during its annual National Preservation Awards.  Created in partnership with the Historic Charleston Foundation, which hired San Francisco-based Page & Turnbull to assist in its fomulation and drafting, the new plan is innovative in that it goes beyond bricks and mortar to consider social, curltural, and economic issues.  The plan also offers tools for assessing the physical characteristics of individual neigborhoods, and includes strategies for addressing sprawl, gentrification, affordable housing, and disaster management.  For a link to a video summary of Charleston's new plan and more information about the award, click here.

Will Cook, Charleston School of Law

January 31, 2010 in Historic Preservation | Permalink | Comments (0) | TrackBack (0)