Friday, March 25, 2011
Thanks to Jim's posting on Sanborn maps I started poking around at old maps and found a well-executed program in which The New York Times superimposes John Randel's 1811 proposed grid of Manhattan (200 years old), with an 1836 map of Manhattan, with the modern day layout of Manhattan. The program is packed with information including, historic census data for 1910, 1940, 1970, and 2000. Some of the results are surprising. For example, many of the census districts dropped dramatically in population from 1910 to 2000 (my old stomping ground on Prince & Mulbury had a population of 15,419 in 1910 and only 4,884 in 2000). The population increases from 1910 to 2000 in the census districts north of the Upper West Side and upper Manhattan.
Have a good weekend.
This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.
Thursday, March 24, 2011
I've posted several times on the plight of my hometown Detroit, but this NYT article really summarizes the challenges in a stark way:
Laying bare the country’s most startling example of modern urban collapse, census data on Tuesday showed that Detroit’s population had plunged by 25 percent over the last decade. It was dramatic testimony to the crumbling industrial base of the Midwest, black flight to the suburbs and the tenuous future of what was once a thriving metropolis.
It was the largest percentage drop in history for any American city with more than 100,000 residents, apart from the unique situation of New Orleans, where the population dropped by 29 percent after Hurricane Katrina in 2005, said Andrew A. Beveridge, a sociologist at Queens College.
The number of people who vanished from Detroit — 237,500 — was bigger than the 140,000 who left New Orleans.
That's statistically amazing. A city could lose more people on its own than what an epic natural disaster like Hurricane Katrina could cause.
At some point, does abandonment of certain parts of the city become a possible option?
Well, before you know it, I'll be reaching the Zoning segment of Property this semester. Jon's wonderful visual in his Glass House disaster post put me in mind of the digitized Sanborn maps I used to teach environmental due diligence back when our Community Development Clinic was offered as a two-semester course. It turns out that the building which houses UB's clinical program was the turn-of-the-century site of one of Baltimore's (and the planet's) earliest automotive engine plants.
As maps collecting fire insurance information for the 100 years following the Civil War, they were also a great way to show the expansion of the industrial city and the jumble of uses prior to Euclidean zoning. I got the Baltimore maps I used from the local library collection, but the Library of Congress has "4000 sheets . . .online in the following states: AK, AL, AZ, CA, CT, DC, GA, IL, KY, LA, MA, MD, ME, MI, MO, MS, NC, NE, NH, NV, OH, PA, TX, VA, VT, WY and Canada and Mexico." (NYC is here.) The site also features a nice introductory essay. Enjoy.
Nashville-1914, Library of Congress (The Ryman Auditorium next door to the synagogue in lower left)
Wednesday, March 23, 2011
Brownstoner.com has posted its third and final instalment describing the May 5, 1885 Glass House Disaster fire in Brooklyn, New York. The 1886 zoning map below shows the missing buildings from Block 40 where the fire occurred. The article partially describes the events as:
"On May 5th, 1885, a devastating building collapse and fire tore apart the industrial park located inside the blocks of Atlantic, Hicks, State and Columbia, down near the waterfront. A warren of interconnected factory buildings pressing into the backs of tenement buildings facing Atlantic Avenue came crashing down that May morning, as shoddy repairs to structural beams in the central building called the Glass House, could not stand up to the stresses on the old building, and it collapsed, bringing fire and horrible casualties with it."
The article then goes on to focus mostly on the criminal trials (or lack thereof) that followed. It has an eerie forecasting of the Triangle Shirtwaist Factory fire - almost 25 years later.
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 22, 2011
Following up on Matt's blog post last week on urban chickens, and on my previous post, today I found this remarkably detailed article in the Athens-Banner Herald on cities near Athens considering lifting their ban on chickens in residential areas. Rarely do you see proposed regulations outlined in such detail in a short news article, so I have to appreciate the reporter's diligence.
Interestingly, some of the elected officials are opposed to lifting the ban in part because of enforcement issues, including the fact that they have no place to keep chickens confiscated from property owners who violate the ordinance. But if chickens are already banned, isn't that a current (rather than prospective) problem?
Anyway, the chickens-in-the-city battles continue...
Jamie Baker Roskie
Yesterday, the Supreme Court refused to hear a NJ couple's challenge of a fine and restoration order for filling wetlands in their backyard. The wetland violation was found when a NJ Department of Environmental Protection (“DEP”) agent inspected the property (upon a neighbor's complaint!). The agent found that the "homeowners had placed fill and maintained a manicured lawn on land designated as regulated freshwater wetlands and within a conservation easement." DEP issued a fine and an order to "fully restore, without exception, these areas to their 'pre-disturbance condition.'"
A New Jersey intermediate court upheld the inspector's actions (New Jersey Dept. of Environmental Protection v. Huber, Not Reported in A.2d, 2010 WL 173533, N.J.Super.A.D., January 20, 2010 (NO. A-5874-07T3)) holding that the inspection did not require a warrant and was authorized by state wetlands and environmental law.
In denying cert Justice Alito found that the New Jersey Supreme Court had not yet decided the issue. Jonathan Adler (Case Western Reserve School of Law in Cleveland) "told BNA that Alito's statement 'as a legal matter is not in any way binding on lower courts or anything like that.'" However, it does “indicate that several of the justices have concern about this practice … and I think, reading between the lines, these four justices indicated that they would be willing to look at this question were it raised in a proper case.”
April Charney, Senior Attorney in Jacksonville Legal Aid's Consumer Unit and foreclosure attorney extraordinaire, has posted an article containing 27 statistics about the real estate crash on "DIRT - Real Estate Lawyers Listserv." Some highlights:
"The number of new building permits fell to a new all-time record low in February. In fact, new building permits were 20 percent lower during February 2011 than they were in February 2010."
"As of the end of 2010, 23.1 percent of all U.S. homeowners with a mortgage owed more on their homes than their homes were worth."
"According to the U.S. Census Bureau, 18 percent of all the homes in the state of Florida are sitting vacant. That number is 63 percent larger than it was just ten years ago."
"N[e]w home sales in the United States are now down 80% from the peak in July 2005."
"Deutsche Bank is projecting that 48 percent of all U.S. mortgages could have negative equity by the end of 2011."
"According to Zillow, U.S. home prices have already fallen further during this economic downturn (26 percent) than they did during the Great Depression (25.9 percent)."
It sure is difficult to remain optimistic.
The full article may be viewed here.
George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011). Here's the abstract:
The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.
Monday, March 21, 2011
Keith H. Hirokawa (Albany) has posted Disasters and Ecosystem Services Deprivation: From Cuyahoga to the Deepwater Horizon, Albany Law Review, Vol. 74, No. 1 (2011). The abstract:
On April 20, 2010, an explosion on the Deepwater Horizon oil rig resulted in the release of substantial amounts of oil into the Gulf of Mexico, threatening the viability of some of the world’s most essential ecosystems. Due to both the scale of the damage and the circumstances regarding the risks involved, the event has been appropriately labeled as a disaster. However, the Deepwater Horizon incident has also mobilized a large-scale investigation into the living technology through which the Gulf of Mexico and its ecosystems provide essential, life-supporting ecosystem services. This essay explores the manner in which environmental disasters require us to adapt our understanding of nature to a changed environment, forcing us to face the loss of valuable services provided by functioning ecosystems. This essay discusses the role of environmental disasters in the development of environmental law, then focuses on the opportunities provided by ecosystem services research in calculating the ecological, social, and economic value of natural resources impaired in such circumstances.
That's two today from the Albany junior profs!
Raymond H. Brescia (Albany) has posted Leverage: State Enforcement Actions in the Wake of the Robo-Sign Scandal. The abstract:
In the fall of 2010, in one of the largest scandals to ever hit the American court system, information gathered from lawsuits across the country revealed that tens of thousands of foreclosure filings were likely fraudulent - if not outright criminal. These revelations sparked a nation-wide investigation by all 50 state attorneys general to assess not only the extent of the scandal and its potential impacts but also potential legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state's Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit "unfair" and "deceptive" practices and often give consumers, as well as state attorneys general, the ability to bring affirmative litigation to rein in practices that violate their terms. UDAP laws serve a critical consumer protection function by filling in gaps in the law where other, more targeted statutes might not cover practices that have a harmful impact on consumers. Since their inception, UDAP laws have been used to rein in abusive practices in such areas as used car sales, telemarketing and even the sale of tobacco products. This paper explores the availability of UDAP laws and the remedies they provide to rein in the range of practices revealed in the so-called "robo-sign scandal." It concludes that such practices - the false affidavits, reckless claims and improper notarizations - all violate the essence of most state UDAP laws; accordingly, the remedies available under such laws may be wielded by state attorneys general to halt abusive foreclosure practices throughout the nation. Such remedies include civil penalties, actual and punitive damages, attorney's fees and injunctions. What's more, UDAP actions in light of robo-sign abuses could help chart a path towards a more robust mortgage modification regime, one that would result in principal reduction, which is the clearest path out of the current crisis.
March 21, 2011 in Finance, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Property, Real Estate Transactions, Remedies, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)
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