September 2, 2011
Update on Vermont Law and Irene
Vermont Law School has established a donation fund for victims of Irene-related funding:
Vermont Law School has established the VLS Relief Fund to accept financial contributions to aid VLS students, staff and faculty who have been affected by Tropical Storm Irene. The top priority are those who need assistance with housing, food, clothing and other basic needs as well as books and other study materials for students. Second priority will be repairs to VLS buildings and grounds that sustained damage from the storm.
For more information on volunteering and donating, visit this website.
I also got an e-mail last night from Vermont's land use clinician, Kat Garvey. Kat and her husband had just returned from their honeymoon, which made for a surreal experience. The Land Use Clinic's associate director, Peg Elmer, suffered extensive flood damage to her home.
Kat is recruiting the VLS community and volunteer lawyers to provide help to flood victims applying for FEMA assistance. If you or your law school has experience with post-disaster relief, I'm sure Kat would love to hear from you.
Jamie Baker Roskie
Hirokawa & Gottlieb on Sustainable Habitat Restoration
Keith H. Hirokawa (Albany) and Charles Gottlieb have posted Sustainable Habitat Restoration: Fish, Farms, and Ecosystem Services. The abstract:
The conversion of estuarine marshes and floodplains to agricultural uses through diking, draining, and filling has left little adequate salmon habitat and, as a result, has been a critical factor in the decline of salmon populations. Current efforts to restore salmon by reestablishing ecosystem functionality. In particular, it has become more common to include dam and dike breaches as feasible solutions. Of course, there is a cost involved in habitat restoration, even if it is not an obvious environmental cost.
This article examines the dialogue on salmon valuation by contrasting the historical view of salmon-as-commodity with insights from "ecosystem services." This emerging trend in ecological economics will play a critical role in justifying restoration projects and formulating sustainability strategies; ecosystem services valuation is showing that investments in natural capital can provide substantial returns. This article also provides a case study of the Smith Island Habitat Restoration Project in Snohomish County, Washington. Smith Island, which was converted to farmland a century ago, exhibits enormous potential value for habitat restoration and begs for an inclusive process that considers the voices for economic, human, and ecosystem well-being. The resolution of the Smith Island controversy provides an insightful example of how a sustainability framework can be useful in showing that restoration strategies can offer substantial benefits to other lands uses and interests.
September 1, 2011
New Eminent Domain Rules take effect in Texas
Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.
September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:
- It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
- It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
- It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
- It gives landowners additional statutory rights to repurchase property not actually used for the "public use."
We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!
Learning from Brooklyn
Before I got co-op approval on my rental in Forest Hills, Queens (where I now live), I spent a week or so sharing apartments and houses in Boro Park and Canarsie. These are two very different neighborhoods, but from a planning perspective both are of some interest.
I spent the weekend of August 4 sharing an apartment in Boro Park. Boro Park is a heavily Hasidic neighborhood teeming with large families in a zip code with over 75,000 people per square mile, almost three times the NYC average. Some commentators argue that density and large families are inconsistent- but Boro Park shows otherwise. In Boro Park, the average age is 29, well below the statewide average (35).
Then I spent a few days at a bed and breakfast in Canarsie, at the eastern edge of Brooklyn (that is, the part furthest from Manhattan). Canarsie has been hit with many of the major bad urban planning ideas of the 50s and 60s: it includes a couple of housing projects, is not too far from another, and is mostly cut off from the water by an expressway. And because it is so far from Manhattan, it is not appealing to people looking for short commutes.
Not surprisingly, Canarsie has never been a wealthy neighborhood; at some point in the late 20th century it transitioned from a Jewish/Italian working class area to a Caribbean-American working class area. But it is by no means one one of Brooklyn’s worst neighborhoods. Canarsie's poverty rate is lower than the Brooklyn average, and I was willing to walk through the public housing on the way to the subway; even though I wouldn’t do it at night it doesn’t seem threatening during the day.
To me the interesting questions in Canarsie aren't what went wrong: they are: what went right? And given the decline of many inner suburbs, does Canarsie have a future?
Welcome Michael Lewyn
I'm excited to introduce our newest guest-blogger, Michael Lewyn. Prof. Lewyn is on the faculty of the Touro College Jacob D. Fuschberg Law Center, where he just moved after several years at the Florida Coastal School of Law. He teaches and writes in the area of property law and land use, specializing in urban and suburban development and sprawl. He's been a contributor at Planetizen and other places. You can check out his SSRN page here. I suspect many of you are familiar with his work, which includes a number of great articles on sprawl and related topics (including my personal favorite: How Overregulation Creates Sprawl (Even in a City Without Zoning).
We're thrilled to have Prof. Lewyn aboard at the Land Use Prof Blog for September. Welcome!
Transportation PodCast from the Commonwealth Club of California
Driving today I happened upon a radio broadcast of a talk given by Polly Trottenberg, Assistant Secretary for Transportation Policy at US DOT, to the Commonwealth Club of California. Here's a description of her talk from the Commonwealth's web page:
If you have ever been stuck in traffic on the Bay Bridge, late to meetings, or have had a ruined weekend because you couldn’t make it to a destination in time, you know that California suffers from a major transportation infrastructure problem. From pot holes jarring people’s necks and backs, to bridges collapsing nationwide, thousands of commuters are being affected every day by America’s inadequate and faltering transportation infrastructure system. U.S. Department of Transportation Undersecretary for Policy Polly Trottenberg explores solutions to this serious crisis. Trottenberg works toward implementing the president’s priorities for transportation including safety and creating jobs. The DOT employs more than 55,000 employees with a $70 billion budget that oversees air, maritime and surface transportation missions. For 12 years she worked extensively on transportation, public works, energy and environmental issues in the U.S. Senate, for Senators Barbara Boxer, Charles Schumer and Daniel Patrick Moynahan.
Her talk doesn't focus only on California - I tuned in during the question and answer session, when she took a broad range of questions on high speed rail, TIGER grants, freight movement, transportation safety, and other topics. You can download the podcast here.
Jamie Baker Roskie
August 31, 2011
Vermont Law School Impacted by Flooding
Vermont Law was closed Monday and Tuesday due to Irene-related flooding. You can read post-Irene announcements on their website here. I've sent out an e-mail to my fellow land use clinician (and guest blogger) Kat Garvey at Vermont for an update - I'll post again when I hear from her. If any other Northeastern law schools are affected, please let us know via the comments function.
Jamie Baker Roskie
SGA on Hazard Mitigation Post Irene
From the Smart Growth America website, news about an ironically timely meeting:
Can smart growth help communities avoid the catastrophic impacts of flooding? The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) brought together designers, land use planners, engineers and policy wonks at NOAA’s Silver Spring headquarters last week to examine this question, and to find commonalities and tensions between hazard mitigation techniques and smart growth principles.
Read the rest of the article here.
August 30, 2011
Berry and Portney on Interest Groups and City Politics
Jeffrey Berry (Tufts-Political Science) and Kent Portney (Tufts-Political Science), nearly 20 years ago, published the award-winning study of grassroots citizen participation in five U.S. cities, The Rebirth of Urban Democracy. Now they have posted The Group Basis of City Politics, a paper they presented at the 2011 American Political Science Association Annual Meeting. Here's the abstract:
How do nonprofits empower themselves? In this paper we analyze nonprofit advocacy in city politics, emphasizing especially their interaction with local policymakers. First we discuss what we call the “politics of place” in cities, examining the participation of three types of citywide and neighborhood nonprofits. The second section develops two lines of inquiry and articulates a set of hypotheses that grow out of a theoretical construct relating to low barriers to entry. Next, after describing the empirical methodology, those hypotheses are tested with data derived from large scale surveys in 50 of the nation’s largest cities. The subjects of these three surveys are city councilors, agency administrators, and interest group advocates. We find that access to policymakers in city politics is relatively easy as the barriers to entry for advocates is quite low. Not surprisingly the evidence points to a privileged position for business, though neighborhood associations also stand out in terms of incorporation into the policymaking process.
Alavi on Kelo Six Years Later
Boston College Third World Law Journal Notes Editor Asher Alavi has written KELO SIX YEARS LATER: STATE RESPONSES, RAMIFICATIONS, AND SOLUTIONS FOR THE FUTURE. Here's the abstract:
In 2005, the U.S. Supreme Court upheld the constitutionality of eminent domain takings that benefit private developers in Kelo v. City of New London. The case led to public outcry on both the right and the left and the revision of many state eminent domain laws to curtail such takings. However, most of the new laws have been ineffective. In many states, the burden of the takings falls largely onto poor, minority communities while, in others, revitalization projects by private developers are prohibited entirely. This Note examines the negative implications of current approaches to takings on inner-city, minority communities and concludes that states should adopt an approach that allows revitalization of blighted areas by private developers but also provides effective limits such as a narrow definition of blight, enhanced compensation for the displaced, and procedural provisions such as Community Benefits Agreements.
Jamie Baker Roskie
August 30, 2011 in Community Economic Development, Development, Eminent Domain, Local Government, Property Rights, Race, Redevelopment, Scholarship, State Government | Permalink | Comments (0) | TrackBack
August 29, 2011
Nichols on Tenant Protections under the PTFA
Elan Stavros Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties, forthcoming in the Journal of Affordable Housing, Vol. 20, No. 2, Winter 2011. The abstract:
The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.
This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.
To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.
August 28, 2011
Hirokawa on Zoning and Rezoning under the Change-or-Mistake Rule
Keith H. Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule. The abstract:
In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.
Looks really interesting. The rule cuts to the heart of the larger, longstanding public administration debate over rational-comprehensive planning versus flexible incremental decision making.
UPDATE: bad link fixed; thanks for the tip!