Thursday, June 30, 2011
Heidi Gorovitz Robertson (Case Western) has posted Public Access to Private Land for Walking: Environmental and Individual Responsibility as Rationale for Limiting the Right to Exclude, forthcoming in Georgetown International Environmental Law Review, Vol. 23, pp. 211-262, 2011. The abstract:
Whether people have an independent right of access to walk on land they do not own is a question answered differently throughout the world, largely due to cultural, historical, and political variations amongst regions. In this decade, English citizens gained a legislated right to roam on privately owned land designated by the government for public access. The British government now designates land as access land by evaluating the nature of the land itself, not its ownership status. In Sweden, the right to roam on land owned by another has long been a deeply rooted cultural tradition, though not codified in law. Other countries have adopted variations of a right of access, while some, like the United States, continue largely to resist it, choosing instead to hold property owners’ right to exclude above a public right of access. This paper looks at some of the historical and cultural reasons countries have adopted, cherished, or rejected a public right of access to privately owned land. In particular, it focuses on the degree to which each culture values environmental and individual responsibility.
To do so, it considers the Scandinavian countries, with an emphasis on Sweden, where a public right of access is longstanding and cherished, and there is a corresponding deep respect for the environment and individual responsibility. It then considers England, which has moved decisively toward granting broader rights of access to certain types of land through legislation, grounding that expansion on the satisfaction of certain rules pertaining to environmental and individual responsibility. It also looks briefly at several countries in Europe,where environmental and individual responsibility, as well as other cultural factors, have supported expanded rights of access. Finally, it raises the question why the United States does not have, and will not likely achieve, a similar legislated or cultural right of access to private land for walking.
Wednesday, June 29, 2011
Content Based: Earlier this year, the Town of Cary was enjoined from enforcing its sign ordinance
against the sign pictured here. The District court held that the Town’s code was content based because certain categories of signs (holiday decorations, public art, signs for town events) are exempt from regulation because of their content. The plaintiff’s received $44,000+ in attorney’s fees and the town is now appealing.
Content Neutral: In contrast, the district court in Neighborhood Enterprises v. St. Louis found the zoning code for the City of St. Louis to be content neutral even though exceptions to the definition of “sign” include “works of art”. Here, the Missouri Eminent Domain Abuse Coalition displayed a 363 square foot sing which said,” End Eminent Domain Abuse” inside a red circle and slash.
I heard summaries of these cases as part of today’s APA 2011 Planning Law Review. During this webinar Dwight Merriam (VLS) summarized another first amendment case at the Supreme Court, Nevada Commission on Ethics v. Carrigan. This is an interesting recusal case, but not as exciting as the proposed construction of a Wal-Mart in the Town of St. Albans, Vermont. An issue currently at the Vermont Supreme Court is whether the Environmental Court erred in affirming the site plan of this Wal-Mart despite obvious conflicts of interest on the part of several development review board members. The alleged behavior of the board members is particularly surprising given other incidents by board members in this town with regard to the same proposal. In 2004, a board member wore a hat with the inscription “St. Albans Needs Wal-Mart.”
Here is some testimony we have used during ethics discussions at the beginning of the semester…
“In the deposition, he stated that he wore the hat because “[i]n America I thought it was a free country so I wore the hat” and that “I thought in America you could wear anything you wanted on your head at any time because it’s still a free country.” In answer to a request that he further explain his interrogatory answer that he chose to wear the hat for its historical significance, he stated: “Historical, historically because there’s a gentleman named Sam Walton had nothing in his pocket and he built himself an empire. I say the American dream came true to him. That’s the only reason I wore the hat. No other reason."”
Tuesday, June 28, 2011
I stay in touch with a recent grad doing land use work. (He has a great climate adaptation blog). He asked how I deal with plagiarism and sent this piece from the New Inquiry on cheating. It's "a dialogue between Teach, an adjunct philosophy instructor at a public university in New York, and Cheat, who has authored over 100 papers for pay." I learned some new red flags to watch out for; such as the correct use of a semicolon.
Teach: In my philosophy class of 36 students I had six instances of plagiarism. I ended up turning them all in to the Committee on Academic Standing.
Cheat: Do you remember how they plagiarized?
T: One is a case of self-plagiarism, in which the third paper was turned in a second time for the fourth paper.
C: In its entirety?
T: In its near entirety. He changed the introduction and the conclusion, but left the body paragraphs the same.
C: So he tricked a search engine, but not a human.
T: In the four other cases, I discovered specific lines that were taken off Internet sites including the Stanford Encyclopedia of Philosophy—at the best, Wikipedia, Yahoo Answers, and some Cambridge professor’s blog.
C: How did you find that? Through a Google search?
T: Well, first I detect it. There are a number of red flags.
For those interested in conservation easements, if you haven't seen Jessica Jay's work its worth checking out. She is a practitioner who teaches Land Conservation Law at VLS during the summers and gave a great lunch lecture today on "When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment & Termination of Perpetual Conservation Easements." There is a lot of ink on this subject and she does a great job keeping up-to-date on how states and the IRS manage and might manage amendments to conservation easements. Here are a couple of her helpful outlines:
I enjoyed this post by Charles Marohn from Strong Towns on grist.org. At our clinic (VLS) we discuss smart growth/smart decline principles and have focused on environmental and social impacts. I'd never heard the Ponzi scheme analogy and think it's a great way to bring cost into the discussion.
"Since the end of World War II, our cities and towns have experienced growth using three primary mechanisms:
- Transfer payments between governments: where the federal or state government makes a direct investment in growth at the local level, such as funding a water or sewer system expansion.
- Transportation spending: where transportation infrastructure is used to improve access to a site that can then be developed.
- Public and private-sector debt: where cities, developers, companies, and individuals take on debt as part of the development process, whether during construction or through the assumption of a mortgage.
In each of these mechanisms, the local unit of government benefits from the enhanced revenues associated with new growth. But it also typically assumes the long-term liability for maintaining the new infrastructure. This exchange -- a near-term cash advantage for a long-term financial obligation -- is one element of a Ponzi scheme.
The other is the realization that the revenue collected does not come near to covering the costs of maintaining the infrastructure. In America, we have a ticking time bomb of unfunded liability for infrastructure maintenance. The American Society of Civil Engineers (ASCE) estimates the cost at $5 trillion -- but that's just for just major infrastructure, not the minor streets, curbs, walks, and pipes that serve our homes.
The reason we have this gap is because the public yield from the suburban development pattern -- the amount of tax revenue obtained per increment of liability assumed -- is ridiculously low. Over a life cycle, a city frequently receives just a dime or two of revenue for each dollar of liability. The engineering profession will argue, as ASCE does, that we're simply not making the investments necessary to maintain this infrastructure. This is nonsense. We've simply built in a way that is not financially productive.
We've done this because, as with any Ponzi scheme, new growth provides the illusion of prosperity. In the near term, revenue grows, while the corresponding maintenance obligations -- which are not counted on the public balance sheet -- are a generation away."
If you haven't already used up your June allotment of free articles on The New York Times website, you might find this article interesting. It's entitled "For New Life, Blacks in City Head South." An excerpt:
Life has gone full circle,” said Ms. Wilkins, whose grandmother was born amid the cotton fields of North Carolina and moved to Queens in the 1950s.
“My grandmother’s generation left the South and came to the North to escape segregation and racism,” she said. “Now, I am going back because New York has become like the old South in its racial attitudes.”
Many black New Yorkers who are already in the South say they have little desire to return to the city, even though they get wistful at the mention of the subways or Harlem nights.
Danitta Ross, 39, a real estate broker who used to live in Queens, said she moved to Atlanta four years ago after her company, responding to the surge in black New Yorkers moving south, began offering relocation seminars. She helped organize them, and became intrigued.
Ms. Ross said she had grown up hearing stories at the dinner table about segregation. She said the Atlanta she discovered was a cosmopolitan place of classical music concerts, interracial marriage and opulent houses owned by black people.
A single mother, she said that for $150,000, she was buying a seven-room house, with a three-car garage, on a nice plot of land.
Ms. Ross said she had experienced some culture shock in the South, and had been surprised to find that blacks tended to self-segregate, even in affluent neighborhoods.
She said that the South — not New York — was now home.
“People in Georgia have a different mind-set and life is more relaxed and comfortable here,” she said. “There is just a lot more opportunity.”
I'm a bit suprised by this trend, given that unemployment in Georgia, particuarly among blacks, remains very high. But, cost of living and pace of life do account for a great deal. Still, it's a interesting reversal of a very long trend of northern migration.
Jamie Baker Roskie
Monday, June 27, 2011
Kenneth Stahl (Chapman)--former Land Use Prof guest blogger--has posted All Power to the Neighborhoods?: The Delegation Doctrine and Neighborhood Control of Zoning. The abstract:
Whether cities should delegate some of their zoning power to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.
This article argues that the judicial prohibition on delegating zoning power to proximate landowners – a scheme I designate a “neighborhood zoning district” – is doctrinally illogical and indefensible as a matter of public policy. As a doctrinal matter, the cases barring the neighborhood zoning district are at odds with another line of cases in which courts have upheld municipal schemes that empower landowners within a territorial area to authorize the financing of services or improvements through a mandatory assessment, known as a “special assessment district,” or in its modern incarnation as a “business improvement district.” As I argue, neighborhood zoning districts are conceptually identical to special assessment districts. Both restrict the franchise to individuals deemed to have a particularly substantial interest based on land ownership in proximity to a proposed change in the character of the neighborhood. As such, both devices offer landowners the ability to efficiently manage local externalities and enable large, diverse cities to effectively compete with small, homogenous suburbs by mimicking the most attractive features of suburban government. The article attempts to reconcile the two doctrinal lines on several policy grounds, but finds that, in many cases, neighborhood zoning districts actually represent sounder public policy than special assessment districts. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own desired relationship between neighborhoods and city hall, and their own strategy for surviving in an era of intense inter-local competition.
This is a fascinating paper that really goes to the heart of some of the major questions about which level of government is best positioned to regulate land use. I saw Ken present some of these ideas at ALPS (before we played hooky at the National Building Museum) and the article's well worth reading.
I haven't been able to blog as much as usual lately, and one of the reasons is that we just moved. It was a local move, but I'm sure you all know what a hassle moving is. But today, the move actually helped my blogging. It seems that the previous tenant failed to cancel his multiple newspaper subscriptions. I rarely read news on dead tree anymore, so I might not otherwise have seen this morning's front page New York Times Story by Elisabeth Rosenthal called: Across Europe, Irking Drivers is Urban Policy.
ZURICH — While American cities are synchronizing green lights to improve traffic flow and offering apps to help drivers find parking, many European cities are doing the opposite: creating environments openly hostile to cars. The methods vary, but the mission is clear — to make car use expensive and just plain miserable enough to tilt drivers toward more environmentally friendly modes of transportation.
Some cities have closed entire streets; some introduced stiff fees for driving into the city; many have reduced on-street parking drastically; bike lanes have replaced car lanes without offset for traffic; others have purposely added red lights to mess with drivers; Zurich's tram operators seem to have the ability to change the lights to their favor as they approach. (I'm trying to imagine how much a magic traffic-light-changing remote control clicker would fetch on e-bay.)
According to the story, and probably not inconsistent with what some of you may have observed, many of these European cities have dramatically improved in walkability, transit options, and quality of public space. How much the policies are related causally to the result isn't clear, but we can assume they've had an impact.
I'm not entirely sure what I think of all this. I'm a strong proponent of improving urban life by incentivizing higher density, mixed-use development and increasing pedestrian-oriented neighborhood viability and transit-oriented development. Love it. Still, I am hesitant to pursue these goals through policies that actually make things worse for some people on purpose. What do these policies do to affordable housing? How about people from lower socioeconomic strata that need to make their living from driving goods and services around the city? How do public shared bikes help women who don't cycle (and families with kids)? By all means, make mass transit better, faster, more economical. But purposely creating red-light patterns just to deliberately piss people off just concerns me a bit. It also would seem to thwart a number of smart-growth-friendly options that nonetheless rely on roads, such as bus rapid transit.
Admittedly I'm looking at this from the urban planning side more than the environmental side, but it seems the environmental benefits of these policies will be much more difficult to observe than the effect on quality of life; it's easy to see the quality of life in the very nice and improved transit-accessible mixed-use public spaces, but these types of policies would seem to generate a lot of external costs--on purpose. Maybe that's a tradeoff people are willing to make. But to acheive the same progressive land use goals, I still have a preference for a positive approach (e.g., incentivizing (or even just allowing) smart growth and new urbanism) rather than purposely making some aspects of urban life worse by degrading capabilites to make some people's lives "miserable."
June 27, 2011 in Affordable Housing, Comparative Land Use, Density, Downtown, Environmentalism, New Urbanism, Parking, Pedestrian, Planning, Politics, Smart Growth, Sprawl, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)
John C. Dernbach (Widener) has published "Creating the Law of Environmentally Sustainable Economic Development" in the Pace Environmental Law Review. From the introduction:
We need to unpack the term “development,” finding a way to make the term meaningful for the United States, if we are to have any real chance to achieve a sustainable America. More particularly, we need to address the law that supports economic development and understand how to make that law a powerful force on behalf of sustainability. In fact, much of the limited legal progress made by the United States toward sustainable development has involved the law of economic development. The growing use of such terms as “green economy” and “green jobs” is indicative of the direction that both policy and law are evolving. Municipalities across the United States, in particular, are consciously using renewable energy technology, green infrastructure, recycling, brownfield redevelopment, and other forms of more sustainable economic development not only to create jobs and improve their economies, but also make themselves more attractive places to live and work. [citations omitted.]
Jamie Baker Roskie
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- What to make of the fierce new debate over the efficacy of California's energy codes?
- The W&L Top 100 Law Review Rankings and the Land Use Law Scholar
- CFP: 2015 Future of Places Conference (lead-in to Habitat III) in Stockholm: Deadline of April 15
- Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under
- Interior unveils final rule governing fracking regulations on public lands