Friday, May 20, 2011

CNU 19: Growing Local

The 19th annual meeting of the Congress for the New Urbanism will be June 1-4 in Madison, Wisconsin. 

The annual Congress for the New Urbanism (CNU) is the leading venue for new urbanist education, collaboration, and networking. CNU members come from around the world to discuss development practices and public policies, learn from recent innovative work, and advance new initiatives to transform our communities.

Drawing on the close relationship Madison has with its agricultural neighbors, CNU 19 will build on the theme of “Growing Local.” The conference will explore linkages that urban communities have with local food production, the food economy and the infrastructure that has developed around this symbiosis.

It’s not just about growing food though. The conference will extend the “Growing Local” theme to include the nurturing of non-agricultural local economies and local connections — from Madison’s burgeoning bicycle industry and bike culture to its commitment to community involvement and participation, and pursuit of growth that reinforces a distinct sense of place. The region’s balance of vibrant urban life, rural charm, and natural beauty make Madison an ideal backdrop for CNU 19. Confirmed speakers include author and urban historian William Cronon, Trek CEO John Burke, Madison Mayor Dave Cieslewicz, Congressman Blumenauer, the six original visionaries of CNU, Seaside, FL founder Robert Davis, and many, many more.

Matt Festa

May 20, 2011 | Permalink | Comments (1) | TrackBack (0)

Demolition Day

Today I will be proud to participate in Commencement at South Texas College of Law.  We're thrilled to have Houston Mayor Annise Parker as our keynote speaker.  But shortly before Mayor Parker begins speaking, she will order hundreds of buildings destroyed all across the city.

No, it's not the May 21 Rapture.  It's Demolition Day! 

With the donated help of the Houston Contractors Association, 99 abandoned, dangerous buildings will be bulldozed as part of Mayor Annise Parker's 2nd annual Demo Day.  Some of these structures are in your neighborhood.  Click here to see addresses for the 99 buildings http://www.houstontx.gov/citizensnet/hcasites.pdf

Mayor Parker and District D Houston City Council Member Wanda Adams will help kick off Demo Day Saturday, May 21, 2011 9:00 a.m.

Initiated in 2010, Demo Day is a one-day concentrated effort to rid neighborhoods of abandoned and dangerous buildings that often serve as havens for drugs, prostitution and other crimes.  This year's effort will extend beyond one day to include the demolition of approximately 300 more derelict structures over the summer months.  This second batch of demolitions will be carried out by City contractors once the buildings have undergone asbestos abatement. Click here to see the complete list of about 400 structures http://www.houstontx.gov/citizensnet/demoinitiative.pdf.

There has been a lot of attention given to the problem of abandoned and derelict properties from several angles recently, from the foreclosure crisis, to dying cities & neighborhoods, to crime & disorder, to blight and eminent domain.  "Demolition Day" sounds like a cool movie title, but more importantly it looks like Mayor Parker has an innovative approach to the problem.

Matt Festa

May 20, 2011 in Crime, Eminent Domain, Housing, Houston, Local Government, Redevelopment, Texas, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

Ramapo Village Spent $450,000 in Losing Battle over Discriminatory Zoning

Most land use professors are familiar with the town of Ramapo, New York, whose phased-growth program was upheld as constitutional nearly 40 years ago.  Among other things, the court in the famed Ramapo case found that the town’s program was “far from being exclusionary” and sought only to “provide a balanced and cohesive community.”  Interestingly, certain land use controls in one Ramapo village have proven far more vulnerable to constitutional challenge for their exclusionary effects.

Recently, the Village of Airmont (which is located within Ramapo) settled a lawsuit filed under the RLUIPA and Fair Housing Act relating to the Village’s zoning prohibition on boarding schools.  The Manhattan U.S. Attorney’s office brought its claim against the Village back in 2005 after the Village denied a permit application from the Hasidic Jewish Congregation Mischknois Lavier Yakov to construct a religious boarding school in the community.    

According to recent stories in the Wall Street Journal and elsewhere, the Village finally settled the lawsuit a couple of weeks ago after expending more than $450,000 in legal fees.  The May 9 consent decree formalizing the settlement gives the Village until October 15, 2011, to amend its zoning code to allow construction of the religious school and to otherwise bring its code into compliance with federal laws “prohibiting discrimination and unreasonable imposition on religious freedom.” 

This isn’t the first time that Airmont has effectively lost a discriminatory zoning claim.  According to the New York Times, the Village previously had to amend its zoning ordinances in response to a 1991 Fair Housing Act claim contesting a zoning prohibition on the use of private homes as places of worship.

These constitutional zoning challenges in the decades following the Ramapo case offer at least some support for the theory offered by Fred Bosselman back in the 1970s (see generally 1 Fla. St. L. Rev. 234, 248-50 (1973)) that exclusionary motives were partly behind the town’s famous phased-growth scheme. 

Troy Rule

May 19, 2011 in Housing, Inclusionary Zoning, Local Government, New York, RLUIPA, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Mulvaney on Proposed Exactions

Timothy Mulvaney (Texas Wesleyan) has posted Proposed Exactions, forthcoming in the Journal of Land Use & Environmental Law, Vol. 26, No. 2 (2011).  The abstract:

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.

I've seen Tim present this research, and it's really quite fascinating.  Check it out.

Matt Festa

May 19, 2011 in Constitutional Law, Local Government, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 18, 2011

Rose on the Rights of Tenants of Residential Properties in Foreclosure

Henry Rose (Loyola-Chicago) has posted The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases, 41 N. M. L. Rev. ___ (forthcoming 2011). Here's the abstract:

The purpose of this article is to explore the rights of tenants who reside in buildings undergoing foreclosure to receive notice and an opportunity to be heard when foreclosures threaten to terminate their tenancies. The federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) will significantly reduce the incidence of residential tenancies being terminated as a result of foreclosure. However, PTFA offers weak procedural protections if the mortgagee or the person who acquires ownership pursuant to a foreclosure seeks to terminate the tenancies of residents in the foreclosed building. In those states that require judicial foreclosures, the Due Process Clause of the Fourteenth Amendment to the United States Constitution should afford tenants faced with termination of their tenancies due to foreclosure with notice and an opportunity to be heard before their tenancies are terminated. In states that allow non-judicial foreclosures, Due Process protections are not likely to be available to tenants due to a lack of state action in the foreclosure process. PTFA should be amended to afford all tenants, including those who reside in non-judicial foreclosure states, with notice and an opportunity to be heard before their tenancies are terminated pursuant to a foreclosure.

Jim K.

May 18, 2011 in Affordable Housing, Federal Government, Financial Crisis, Housing, Landlord-Tenant, Mortgage Crisis, Mortgages, Property, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

Mad Max and the Thunder-burbs?

This sounds ominous

"The Road" and "Book of Eli" and now this...ugh!

Suburbia is getting more dangerous than just wide highways and expensive gas...

Chad Emerson.

p.s. Probably, my first and only link to "Failure Magazine".  Just too depressing to do more than once (even if true).

May 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Prairie Chickens: Another Challenge for Wind Energy Development

The Kansas Department of Wildlife is asking a wind energy developer to spend an extra $567 million to route its project’s power lines away from “lesser prairie chicken” mating areas.     

According to a Kansas City Star article published yesterday, the Department’s revised power transmission route would spare about 140 of the 20,000 to 40,000 lesser prairie chickens estimated to live in Kansas.  Based on those figures, the developer is being asked to spend about $4 million per prairie chicken saved.  An ordinary Kansas hunter can purchase a license to kill up to 40 of the birds for less than $21.   

Usually, conflicts between bird conservationists and wind energy developers center around the risk that birds or bats will suffer fatal collisions with turbines and towers.  Developers now tend to install wind turbines outside of migratory bird paths to help limit bird fatalities on wind farms. 

In contrast, wind turbines and transmission systems threaten prairie chickens by inhibiting the birds’ breeding activities.  A Bloomberg article from 2009 states that the species’ mating rituals involve an “elaborate dance” and suggests that “the chickens have learned to avoid such mating displays around structures like wind turbines or utility poles where predators may perch.” 

Based on the available information, revising the transmission route to steer clear of the chickens’ breeding grounds seemingly isn’t cost-justified in this case.  It will be interesting to see whether the Kansas Corporation Commission, which is deciding this dispute, reaches the same conclusion.

Troy Rule

May 16, 2011 in Clean Energy, Comparative Land Use, Development, Sprawl, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Sunday, May 15, 2011

Another Form-Based Code is...

...is now on the books.  This time in Paso Robles:

Form-based codes in Paso Robles – it's a first-of-a-kind adopted planning approach incorporated into a master document for the city hailed by San Luis Obispo Council of Governments and Paso Robles Community Development Department officials alike as setting an example for future planning.

Following years of public hearings, ad-hoc committee meetings, charrettes and public discussion, the city council moved forward this week with unanimously approving – with several motions – the new Uptown/Town Centre Specific Plan.

Designed in collaboration with Moule & Polyzoides, the plan will lay the framework for new planning along an 1,100-acre area on the west side of Paso Robles.

Geiska Velasquez, representing SLOCOG, commended the city for its efforts made thus far.

"This is a plan that's really going to be an example for communities across this county and the region," Velasquez said.

City Councilman Fred Strong echoed a similar sentiment.

According to Strong, at a statewide meeting the Uptown/Town Centre Specific Plan was hailed by state officials as an example of a positive approach to planning, "responding to the trends of the last 30 years and looking forward to the next 50."

Read the entire story here.

Chad Emerson.

May 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Byrne on Stopping Stop the Beach

J. Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality!, forthcoming in the Ecology Law Quarterly.  The abstract:

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

Matt Festa

May 15, 2011 in Beaches, Coastal Regulation, Constitutional Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Rule Against Perpetuities--Alive and Well

While it's not entirely a land use issue, many of us have had to deal with perpetuities issues in land. 2011-04-05 027  Contrary to what you hear from certain property-haters out there, the Rule Against Perpetuities still affects many property law issues, even if it lurks behind the scenes much of the time.  Some of you may have seen this story going around: Millionaire's heirs get inheritance after 92 yrs; Lumber baron Wellington R. Burt finally parts with his fortune, 21 years after his last grandkid died.  

(AP)  SAGINAW, Mich. — Ninety-two years after his death, Saginaw lumber baron Wellington R. Burt is finally parting with the fortune he withheld from his descendants until 21 years after the death of the last grandchild born in his lifetime.

The estate is now valued at $100 million to $110 million. It will be shared among 12 of his heirs later this month.

According to The Saginaw News, Burt once was among the eight wealthiest Americans. He made millions of dollars in the harvesting of the Saginaw Valley's timber and then another fortune in Minnesota's iron mines. He served as mayor of Saginaw and later as a Michigan state senator.

At 19 years old, Christina Cameron of Lexington, Ky., is the youngest of the 12 and is in line to receive $2.6 million to $2.9 million. . . . Cameron is the great-granddaughter of Marion Landsill. She was the last survivor among Burt's grandchildren who were born in his lifetime. She died Nov. 21, 1989.

Saginaw County Chief Probate Judge Patrick McGraw said the estate is "one of the most complicated research projects" he's faced in his 12-year career in Saginaw.  When McGraw arrived in 1999, the estate had long been a part of courthouse lore.

The Dead Hand got its wish, to the maximum extent allowed under the RAP!  Show this story to your  students the next time you hear that they know a guy who knows a guy who knows a lawyer who says the RAP doesn't have any real-world impact.  While many states have abolished or reformed the rule, property law still remains in the shadow of the ol' lives in being + 21 rule.  Personally, I think it also gets the point across if you wear a Rule Against Perpetuities t-shirt like the one above from my closet, but that may not fit everyone's sense of style.  Thanks to Steve Homer, John Kowalczyk, and Ash Shepherd for the pointer.

Matt Festa

May 15, 2011 in History, Property, Property Theory, Teaching | Permalink | Comments (0) | TrackBack (0)

Alexander on New Regionalist Approaches to Sustainable Communities

Speaking of HUD, here's a new article from Lisa T. Alexander (Wisconsisn) called The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, forthcoming in the Fordham Urban Law Journal, Vol. 38 (2011).  The abstract:

This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.

Matt Festa

May 15, 2011 in Affordable Housing, Community Design, HUD, Local Government, Planning, Scholarship, Sprawl, State Government, Suburbs, Sustainability, Transportation | Permalink | Comments (0) | TrackBack (0)

Washington Post Investigative Report on HUD

Courtesy of Mark Edwards at Property Prof, a link to what looks like an important and troubling report, Million-Dollar Wasteland: HUD's Mismanagement of America's Affordable Housing.  Here's Edwards' initial reaction:

Given that Congress is looking for areas to budget-cut, I suspect this series could be a game-changer for HUD.  That's unfortunate, because the need for affordable housing in the United States is enormous.  No doubt there is waste at HUD.  But I suspect that the committed and well-intentioned people at HUD are trapped in a downward spiral: they aren't given enough resources to adequately oversee the projects they fund; the projects they fund are wasteful; so their resources are cut.

Matt Festa

May 15, 2011 in Affordable Housing, Federal Government, Housing, HUD, Politics, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)