January 15, 2011
Validity of Foreclosure Titles after Ibanez
This past week the Supreme Judicial Court of Massachusetts issued a slip opinion in the case of U.S. Bancorp v. Ibanez unanimously affirming a Land Court decision invalidating a nonjudicial power-of-sale foreclosure because the foreclosing party had not produced a valid chain of title with regard to the mortgage. The SJC rejected the bank's arguments that a mortgage automatically passes to the assignee of the note and that an assignment in blank is a valid transfer of a mortgage. The SJC acknowledged that an executed Pooling Service Agreement (PSA) that properly identified the subject property could authorize foreclosure but found that the bank lacked the necessary paperwork in this case. Adam Levitin (Georgetown) analyzes the decision in a post at the Credit Slips blog.
Even though the majority of states allow assignment of the note alone to provide authority to foreclose, this decision has significant ramifications for the validity of many foreclosure titles in Massachusetts and the states that may follow the SJC's reasoning. The slapdash volume-maximizing paperwork practices of the mortgage securitization industry are hardly limited to robo-signing of foreclosure affidavits. Pre-default shortcuts such as improperly executed PSAs, missing collateral schedules, and incomplete transfers appear to be all too common.
What seems to be missing from the conversation so far is any discussion of how the nonjudicial nature of these foreclosures perpetuates the mess. In the context of botched mortgage securitizations, properties transferred by nonjudicial power of sale processes enjoy little of the title assurance that properly noticed judicial proceedings confer. Without the built-in action to quiet title provided by a judicial foreclosure, will those trying to prevent abandonment of foreclosed homes in the many power-of-sale states have to turn to title-clearing litigation just to make these properties bankable for rehabilitation and resale? Will our inner-ring suburbs be peppered with chronically derelict houses because our mortgage foreclosure proceedings are now producing titles as unreliable as those that tax foreclosure actions have produced for inner-city vacants in years past?
Robert Moses, The Musical
Not too long ago, Jamie posted about a musical based on Atlantic Yards. It seems like the New York theater scene just can't resist land use topics (not that I blame them). Now we have . . .
So a reporter invited Mr. Caro to join her for a sneak peek at the budding musical, “Robert Moses Astride New York,” a work in progress that will have its world premiere in a one-night-only free performance at 7 p.m. on Saturday at the World Financial Center in Lower Manhattan.
To be sure, the musical is considerably less comprehensive than Mr. Caro’s 1,286-page 1974 book, “The Power Broker,” which follows Moses’ career as city parks commissioner and chairman of the Triborough Bridge and Tunnel Authority. “Robert Moses Astride New York” moves through major chapters of history in just a few stanzas, and the piece to be performed Saturday is only a sampling of what the composer, Gary Fagin, ultimately hopes will become a full-fledged production featuring additional characters like the neighborhood activist Jane Jacobs and Mayor Fiorello H. La Guardia. Saturday’s concert will feature the Knickerbocker Chamber Orchestra (Mr. Fagin is its music director and conductor), which will also perform classics by American composers like Aaron Copland, Charles Ives, Leonard Bernstein and Bob Dylan.
I'm about halfway through Caro's The Power Broker--it's a great read, but very long. If you're in New York, you can get the abridged version (+ songs!) at tonight's free world premiere at the World Financial Center.
Gypsy-Travellers & Land Use Direct Action
There was a fascinating piece on the radio in the UK this morning on the disputes between gypsy-travellers and settled communities (for a video see here) with direct action taken on both sides. This head-on collision over land use has arisen in the English village of Meriden where a group of gypsies attempted to construct a caravan site for 14 trailers on a field they own over a holiday weekend (giving them an additional day before local planning officers were open again). While these stealth tactics have previously been successful, this time gypsy-traveller ‘land activists’ were opposed by a human barricade of local residents who were determined not to let them build. Eight months later the gypsy-travellers continue to live on the site in their caravans (with sanitary facilities that were permitted to be constructed over the Summer) with both sides awaiting the outcome of an application for planning permission to construct hard standings and further infrastructure on the site.
These are longstanding disputes (gypsies were regulated as early as the Egyptians Act of 1530), with the nomadism and communal living at the heart of many gypsy and travelers’ lifestyles challenging a planning system based on sedentarism and individualism. Rights to camp or pitch caravans on open spaces have long been restricted with public provision made for gypsy-travellers on authorised sites, although there has been a widely acknowledged lack of provision. This situation has been condemned as ‘deplorable’ by the European Court of Human Rights with approximately one in four Gypsies and Travellers living in caravans without a legal place on which to park their home.
Disputes such as that at Meriden raise claims of unfairness, with arguments raging about whether ‘travelling’ or ‘settled’ communities are better treated by the planning system and why, if gypsies are traveling people, they need settled provision at all. The new Conservative-Liberal Democrat, responding to the concerns of their political supporters in the ‘Tory shires’, are about to introduce new rules on planning applications by gypsy-travellers to restrict their ability to apply for retrospective planning permission and to tackle the thorny issue of public provision of authorised sites. In the meantime, at today’s conference, no gypsy-travellers have apparently been invited to attend.
January 14, 2011
Connecticut RLUIPA case on NPR
All Things Considered last night featured a four-minute story on a federal lawsuit brought by an Orthodox Jewish group challenging the denial of its building permit for a student center in an historic residential district. Patty Salkin (Albany) blogged at Law of the Land this past summer about the denial of the motion to dismiss.
January 13, 2011
City Design Studio...
Here in Montgomery, we are in the process of creating a municipal design and development studio that will provide municipal planning and design services for local development.
Dallas, Texas has one of the country's most-cited examples of this type effort. It even has a Facebook page.
The idea is not to compete with private sector service providers but, instead, complement those services with planning and design tools such as the city's GIS system or other internal resources.
Nashville, Tennessee also has a frequently noted design studio.
Chad Emerson, Faulkner
Hutton on Better and More Uniform Building Codes
Thomas G. Hutton (judicial clerk) has posted Toward Better and More Uniform Building Efficiency Codes, Virginia Environmental Law Journal, Vol. 28, No. 1 (2010). The abstract:
This article will considers the ways federal legislation can approach building efficiency codes for maximum impact. If Congress is seduced by the cost-effectiveness of improved building efficiency codes, it may seek ways to circumvent the slow and sometimes troubled state code adoption process. I am interested in exploring the ways it could do just that. I will first argue that improving building efficiency is an attractive tool for reaching national energy efficiency and carbon emissions goals, and second, consider how our federalist structure of government can accommodate federal involvement in the business of building efficiency regulation. I will then consider four potential federal policy routes to improving building efficiency nationwide.
See the Mojave!
This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious sight for large-scale solar energy development, but that supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.
The common theme that runs through this article is that the law needs to develop better ways to address the importance of visual perception of both natural and cultural sights. The sights of the Mojave Desert elicit different reactions from different people. Each of these reactions is both strongly held and reasonable, which challenges the law’s ability to accommodate them. The experience with desert preservation and the proposed solar facilities shows that the law needs to find a way to respect contrasting perceptions of the same things. Sometimes this can be achieved by putting the right thing in the right place. Often, though, the same sight that some people treasure is a sight that others find offensive. In such cases, we should prefer decision-making processes that solicit public involvement that first identifies those contrasting perceptions and then seeks to honor them. The role of public input is especially critical on government property, which characterizes most of the Mojave Desert. Congress has intervened to insure the appropriate response to the conflicting public perceptions for each of the three contested Mojave Desert sights. That congressional action and the attendant place-based lawmaking offer the best hope of honoring the contrasting perceptions of the sights of the Mojave.
January 13, 2011 in Aesthetic Regulation, Clean Energy, Environmental Law, Environmentalism, Federal Government, Las Vegas, Sun Belt, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack
January 12, 2011
Upcoming Law & Sustainability Symposium at FSU
From JB Ruhl at FSU:
I am pleased to announce our upcoming Law and Sustainability Symposium: The Energy-Land Use Nexus, organized by our Visiting Scholar in Energy and Land Use Law, Uma Outka, and featuring a wonderful collection of scholars and practitioners in the field. All are welcome to attend, and a streaming video will be provided for those who cannot.
Visit this website for the full schedule.
Jamie Baker Roskie
Levinson & Yerra on How Land Use Shapes the Evolution of Road Networks
David Matthew Levinson (Minnesota) and Bhanu Yerra (Minnesota) have posted How Land Use Shapes the Evolution of Road Networks. The abstract:
The present research develops a model to treat the organization, growth, and contraction of network elements. The components of the model include travel demand, revenue, cost, and investment. Revenue earned by links in excess of maintenance costs is invested on the link until all revenue is consumed. After upgrading (or downgrading) each link in the network, the time period is incremented and the whole process is repeated until an equilibrium is reached or it is clear that it cannot be achieved. The model is tested with three alternative land use patterns: uniform, random, and bell-shaped, to test the effects of land use on resulting network patterns. It is also tested with alternative values of the trip distribution friction factor. It is found that similar, but not identical, equilibrium hierarchical networks result in all cases, with the bell-shaped land use network, with a CBD, having higher level roads concentrated in a belt around the CBD, while the other networks are less concentrated. The results suggest that networks are capable of self-organizing, and that the nature of that organization depends on land use and traveler preferences.
January 11, 2011
Montana v. Wyoming (and North Dakota)
Just in time for today's (my one and only) class dealing with water law . . . the U.S. Supreme Court heard oral arguments yesterday about the concept of "beneficial use" in the Western states' prior appropriation approach ("first come, first served" per Chief Justice Roberts) to water law. The case seems to hinge on whether or not Wyoming is in violation of a compact signed by Montana, Wyoming and North Dakota if less water is being returned now to the Yellowstone River basin by Wyoming irrigation systems than was being returned in 1950, the date for the "beneficial use" benchmark. In 2008, the Court appointed Buzz Thompson (Stanford) as special master for the matter. Today's NY Times article suggests that the Court, which has original and exclusive jurisdiction over the matter, is skeptical of Montana's complaint.
When it comes to farms, size matters
In the UK, today was the last day for objections to an application for planning permission submitted by Nocton Dairies’ to build a ‘a US-style ‘mega’ dairy farm’ in rural Lincolnshire for a 3,770 cow dairy unit, dwarfing the average herd that has no more than a few hundred cows. An extraordinary 70,000+ objectors have objected to the proposed development, even though the new farm has reduced the number of cows it proposes to keep (the initial application was for 8,100) and despite impressive commitments to reduce carbon emissions in milk production.
While there are many concerns, objectors link two particularly resonant strands of opposition. The first is that a dairy farm of this size is out of place in the English countryside, the second is that keeping the cows inside, without letting them graze in the fresh air, infringes British beliefs in animal welfare. While much milk is imported into the United Kingdom from elsewhere in the EU, consumers have demonstrated a continuing desire for local dairy products and all the major supermarkets have stated that they would not sell Nocton’s milk in their stores. Campaigners and retailers alike have drawn on understandings of rurality, locality and an understanding of British (as opposed to American) farming to suggest that ‘if this proposal goes through it would not only have a disastrous effect on the well-being of the animals, but will potentially allow other factory farms in to change British farming and our countryside forever’.
As one campaign group puts it (drawing on a British love of tea), ‘Would you drink factory milk from battery cows? Not in my cuppa.’
Popular Science on "Ecotopia"
I was at our local YMCA recently, looking for something to read while working out, and I happened across the July issue of Popular Science. The theme of the issue is "Ecotopia." To me the most interesting article was "The Urban Remodeler." Here's an excerpt.
Architect Mitchell Joachim points out, frequently and without prompting, that his futuristic proposals are always based on existing technologies. No wonder he feels the need to say it. Consider some of his ideas: jetpacks tethered together in swarms, houses grown from living trees, low-altitude blimps prowling New York City with chairs hanging below them for pedestrians to hop on and off (24/7 ski lifts on Broadway!), and WALL-E-like machines that erect buildings and bridges from recycled waste.
For Joachim, a 39-year-old professor of architecture at New York University, with graduate degrees from MIT, Harvard and Columbia, these concepts aren’t Hollywood fluff but designs that could come to life today. Take his concept for waste-building machines, which he calls Rapid Re(f)use. Instead of the cubes of cardboard, plastic or steel that current recycling balers produce, Joachim’s robots would grind and compress waste into I-beams, cruciform columns or even furniture components. The structures would be pressed or melted into shape or wrapped with metal bands, which is what recycling plants do now. All that would change is the shape—like switching the mold on a Play-Doh press, but on an industrial scale. “We could do it yesterday,” Joachim insists.
His vision falls under the banner of Terreform ONE, a nonprofit design collective that Joachim co-founded to explore sustainable, fully integrated urban planning. If the same people who design the roads also design the cars, he says, and the same people who create the suburbs also plan for ways to feed and transport residents, our cities will become healthier, friendlier and more sustainable.
The group imagines how future cities might best serve their citizens on a large scale and then experiments with the small-scale materials and designs that it would take to make it happen. To this end, Terreform ONE hosts TerreFarm, an annual summer gathering of architects and scientists who develop new urban farming techniques. For several weeks this summer, TerreFarm will convert a Brooklyn rooftop into a testbed for modular growing methods, designs for maximizing available sunlight, and ultra-lightweight soil mixes essential for rooftop gardens. They will also build full wall sections of Joachim’s Fab Tree Hab, his proposal to create “living” homes by grafting trees together around scaffolds and growing them on-site.
Joachim’s other plans tend to focus on mobility, since transportation both shapes and is shaped by urban design. In his vision, individual cars would be replaced by car-share systems that function like luggage carts at an airport. Pay, step into a smart car that communicates with the city grid, drive to your destination, and leave the car there. The cars would have soft, springy exteriors, inflatable protective bladders and transparent foil, which would enable them to bump together as they traveled in flocks. “The idea of sharp metal boxes is just done,” Joachim says. “We design cars with the principle that no one would ever die in a car accident again.”
There are always true believers who think that better technology is the way through our environmental problems, and Joachim seems to fall into that class. I certainly have to give him credit for creativity - especially the spongy cars! Full time bumper cars - might be so fun it would be out of control!
Jamie Baker Roskie
January 10, 2011
Interesting New Book...
The WSJ recently ran a story on this new book that analyzes the importance of building communities as opposed to just a collection of disparate buildings. Le Corbusier would have hated this idea but history has proven him so wrong that maybe his disapproval would be a sign of being correct.
Anyhow, the book examines this theory through the lens of the increasingly dense development of China:
To accommodate ballooning populations, Chinese urban planners are building super-zoned residential enclaves. But as they have raced to shelter the masses, policymakers have forgotten to build them actual neighborhoods.
A newly published architectural book, “Networks Cities,” suggests how Chinese urban planning can sprout actual neighborhoods, not just collections of apartment buildings.
The authors, a husband-and-wife team of architects who run a Shanghai firm called B.A.U., have done master plans in China for almost a decade. (Disclosure: the architects are friends of the reporter.)
What’s needed, write James Brearley and Fang Qun, is a strategy of “urbanism with its land uses organized into networks of continuity, adjacency and superposition”–a physics term that essentially means overlapping. In urban planning terms, the authors’ goal is to intertwine living, working and playing spaces in ways they say is rare in China today.
Chad Emerson, Faulkner
Inclusionary Housing in International Perspective
The Lincoln Institute of Land Policy has recently released Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion and Land Value Recapture, edited by Nico Calavita (Planning-San Diego State) and Alan Mallach (Brookings). After 60 pages on the U.S., the book devotes a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa.
James J. Kelly, Jr.
Visiting Prof. of Law, W&L
January 9, 2011
Rosenbloom on Incentivizing Sustainable Businesses
Jonathan D. Rosenbloom (Drake) has posted Government Entrepreneurs: Incentivizing Sustainable Businesses as Part of Local Economic Development Strategies In Greening Local Government, published in GREENING LOCAL GOVERNMENT, Patty Salkin and Keith Hirokawa, eds., 2011. The abstract:
This chapter (which will be included in the forthcoming Greening Local Government book edited by Patty Salkin and Keith Hirokawa) considers economic development strategies that capitalize on an emerging socially responsible and environmentally friendly economy.
Local economic development strategies used to attract private sector investment have remained almost the same for the past forty years. The private sector itself, however, is changing. There is a small, but rapidly growing, segment that has re-conceptualized the purpose of a for-profit business. An emerging portion of the private sector generates profit, value and marketability in fostering sustainable business strategies, focusing equally on economic profitability, environmental friendliness and socially responsibility.
In light of this evolution in the private sector, should local governments redesign economic development strategies to leverage the growth in sustainable businesses? The chapter concludes with steps local governments may take to directly incentivize sustainable businesses by increasing the sustainability of the incentives themselves, including a performance-based economic development strategy; and to indirectly encourage the development of sustainable businesses by helping to facilitate a market for their products.
This chapter does not present sustainable economic development strategies as a single option or as a blanket panacea. Rather, by implementing economic development strategies to accommodate and promote sustainable businesses, local governments enhance their sustainability and diversify their tax base. A welcoming business framework is crucial in driving interest and investments in sustainability to the mutual benefit of local governments and the private sector. As local governments look to support sustainable businesses, they will have a positive impact on communities, economic development and the environment in a sustainable and lasting manner.
January 9, 2011 in Books, Climate, Economic Development, Environmentalism, Green Building, Local Government, Property, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack