Saturday, October 1, 2011


Many thanks to Matt Festa for the invitation to hang out here for a month, to Jim Kelly and Jamie Baker Roskie for sharing space with me, and to my friend and colleague Chad Emerson for not raising a ruckus as I redecorate the cyber-office that he used to occupy.

October will be Notre Dame month here on Land Use Prof Blog. In addition to being smart, eminently personable, and well-traveled, Matt Festa has the good sense to have studied at Notre Dame. Jim Kelly of course teaches there. I obtained my law degree under the Dome, and I am one of those nearly-irrational Notre Dame fanatics who, during twelve Saturdays each fall, jeopardizes his marriage, his friendships with neighbors, and the emotional health of his children by tying his hopes and dreams to the under-developed judgment of 18- to 23-year old scholar-athletes. I anticipate that the quality of blogging here will be inversely proportionate to the quality of football played in the house that Rockne built. If the Irish lose, expect extensive, thoughtful blogging designed to take our minds off… other things.

I’d like to run three, concurrent series of posts while I’m here. First, I hope to invite discussion of my scholarship concerning land use by sharing some of my thoughts in concise form. I am interested in the theoretical justifications for both land use regulation and private property protections for land users. If both private rights and government regulation promote human flourishing—a truly common good—why are they so often in conflict with each other? If one or both of them does not promote the common good, why do we allow them? My views of these questions are perhaps somewhat heterodox among land use scholars of my generation, so I eagerly hope to excite vigorous disagreement.

Second, I plan to share some of the more interesting or amusing tidbits that I have encountered during my reading of land use decisions. Anyone who has practiced in this area will attest that land use decisions are seldom sublime. Town planning officers, zoning boards of appeals, and other land use officials generally (though not always) have good intentions. But their reasoning is sometimes inscrutable, occasionally bemusing, and, every once in a while, downright bizarre.

Third, I hope to comment on current land use disputes. I’ll offer thoughts that I usually keep to myself to avoid imposing them on marginally-interested students.

I look forward to my time here and I appreciate the opportunity to contribute to this excellent venture.

And… Go Irish!

Adam MacLeod

October 1, 2011 | Permalink | Comments (2) | TrackBack (0)

Introducing Adam MacLeod

MacLeod It's my great pleasure to introduce Prof. Adam MacLeod as our newest guest-blogger. Adam is on the faculty of the Faulkner University Jones School of Law in Montgomery, Alabama. He teaches courses in property, IP, and law & public policy. He's written in the areas of property, land use, and jurisprudence; you can check out his articles on his SSRN page. He has a wide range of scholarly ideas within property law, and his articles and conference presentations are always very interesting.

We're thrilled to have Adam on board, and look forward to his contributions this month.

Matt Festa

October 1, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 29, 2011

McLaughlin on Conservation Easements and Merger

Nancy McLaughlin (Utah) has made another fine contribution to our understanding of the use of long-term land protection devices with her essay Conservation Easements and the Doctrine of Merger, 77 J. Contemp. Probs ___ (forthcoming 2011).  Here's the abstract:

Conservation easements raise a number of interesting legal issues, not the least of which is whether a conservation easement is automatically extinguished pursuant to the real property law doctrine of merger if its government or nonprofit holder acquires title to the encumbered land. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. This article also explains that extinguishing conservation easements that continue to provide significant benefits to the public through the doctrine of merger would be contrary to the conservation and historic preservation policies that underlie the state enabling statutes and the federal and state easement purchase and tax incentive programs. 

Jim K.

September 29, 2011 in Conservation Easements, Property, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

City Plan Scarves and Ties

Planetizen has long offered City Map Ties, featuring the plans of world-class cities like Chicago and London.  They've now unveiled a line of women's City Map Scarves. To my eye the scarves aren't quite as beautiful as the ties, but at least now they are equal opportunity fashion statements.  Might be fun to wear one to your Land Use class or as a handy way to carry a city map next time you're in New York or D.C.

Maybe we need a "land use and fashion" sub-category?

Jamie Baker Roskie

September 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Alexander on Lawmaking and the Debate between Place-Based and People-Based Community Development

Lisa Alexander (Wisconsin) has posted Cultural Collective Efficacy, Social Capital and Place-Based Lawmaking: Revisiting the People Versus Place Debate.  In it she renews the debate between those who advocate improving geographic communities and those who emphasize increasing options for economically and socially mobile households.  Here's the abstract:

U.S. housing law is finally receiving its due attention. Scholars and practioners are primarily focused on the subprime mortgage and foreclosure crises. Yet, the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists respectively attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a socio-legal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic and other neighborhood-based cultural endeavors. Cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community as well as obtain more concrete benefits from urban revitalization. It provides a framework to examine important microdyanmics in the “inner-city” that many scholars and policymakers have ignored. This Article devises new combinations of place-based laws that might protect cultural collective efficacy such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) re-interpretations of the Fair Housing Act’s “affirmatively furthering” fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy. 

Jim K.

September 28, 2011 in Affordable Housing, Property Theory, Race, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 27, 2011

Congestion data, part 3: density and congestion

One common argument for anti-density regulation is that dense population leads to traffic congestion caused by packing lots of cars into a small area. A common counter-argument is that if population is compact enough, people will walk and take transit more and drive less. Does the TTI congestion data support either side?

To test the proposition in a fairly primitive way, I examine the central city* density of the 15 largest urbanized areas, and compare the congestion levels of these cities. In particular, I divide urbanized areas into three categories:

1.High-density regions where central cities have over 10,000 people per square mile- Chicago, New York, Boston, Philadelphia, San Francisco, and Miami. In all but one of these cities (Miami), over 20% of commuters use public transit to get to work.

2. Medium-density regions where central cities have 5000-10,000 persons per square mile- Washington, Seattle, Los Angeles, Detroit. These regions have varying levels of transit ridership. Washington has almost 10,000 persons per square mile and its ridership is comparable to that of the cities in category 1. In the other cities, between 7 and 20% of commuters use transit.

3. Lower-density regions where even central cities have less than 5000 people per square mile- Dallas, Houston, Atlanta, San Diego, Phoenix. In all but one (Atlanta) of these regions, even in the central city less than 5% of commuters used transit.

What do we find? In the high-density regions, hours lost to congestion as of 2010 were as follows: New York (54), Chicago (71), Philadelphia (42), Boston (47), San Francisco (50), Miami (38).

In the medium-density regions, hours lost to traffic were as follows: Washington (74), Los Angeles (64), Seattle (44), Detroit (33).

In the low-density regions, hours lost to traffic were as follows: Atlanta (43), San Diego (38), Phoenix (35), Dallas (45), Houston (57).

The average low-density region lost fewer hours to traffic (43.6) than the medium (53.8) or high (52) density regions.

It nevertheless seems to me that there is no clear pattern here. Although the low-density regions, on the average, suffered from traffic congestion less than regions with compact cities, residents of Houston lost more hours to traffic than residents of New York, Philadelphia or Boston. Moreover, there was no real gap between medium- and high-density cities.

*I use central city density because I think central city density is a better predictor of transit use and automobile dependency than overall regional density. For example, Los Angeles has a fairly high level of regional density but a medium level of central city density, because its population is spread more evenly throughout the metropolitan area than that of other cities. Its transit ridership tends to be on the low side, as compared with New York City which has a very compact central city and very low-density suburbs.

Michael Lewyn

September 27, 2011 in Density, Transportation | Permalink | Comments (0) | TrackBack (0)

Congestion, part 2

The Texas Transportation Institute has issued its 2011 report on traffic congestion. Although TTI changed its methodology somewhat, the results seem to be pretty similar to those of its last report (which I discussed in a post last week). The recent report, like last year's report, showed that over the past decade, congestion decreased in five of the nation's largest metropolitan areas: Seattle, Atlanta, San Francisco, Los Angeles, and Detroit). And as I discussed in last week's post, these metro areas have a wide variety of approaches to transportation policy: in San Francisco and Detroit, highway lane-miles per person increased, but in the other three, lane-miles actually increased more slowly than population.

It might be argued that congestion decreased in these cities because economic distress reduced the number of commuters. But in fact, the number of commuters actually increased faster than population in most cities. For example, in San Francisco, population increased by only 2% (from 3.93 million to 4 million) between 2000 and 2009, while the number of commuters increased by over 10% (from 1.71 million to 1.87 million)- more than the increase in the number of lane-miles during this period (from 2335 to 2510, or about 7%). When TTI averaged figures for the fifteen largest urban areas, it came up with a similar result: the average big-region population increased by about 10% (from 5.5 million to 6 million) while the number of commuters increased by about 17% (from 2.34 million to 2.73 million). So if you measure transportation demand by the number of commuters rather than the number of humans, it is even clearer that these regions reduced per-capita highway space.

In sum, it appears that a region can reduce congestion without materially increasing highway capacity.

What happened in the regions that most clearly failed to address congestion? In Chicago, New York, Houston and Philadelphia, hours lost to congestion increased by over 20 percent. In three of these four cities, increases in freeway lane-miles actually outpaced increases in population between 2000 and 2009. In Chicago, population increased by 6% and lane-miles by 13%. In Philadelphia, population increased by 6% and lane-miles by 17% (even more than the i14% ncrease in the number of commuters); in Houston, population increased by 11% and lane-miles by 19% (even more than the 17% increase in commuters). In New York lane-miles increased by slightly less than population. While population increased by 10%, lane-miles increased from 6600 to 7220 (just under 10%).

In sum, the regions that reduced congestion generally did not bother to let road capacity catch up with population growth (let alone the usually higher growth in the number of commuters). By contrast, another group of cities that built roads more rapidly experienced rapid congestion growth instead. This data supports the view that the "road lobby" strategy of widening and building limited-access highways does not relieve congestion.

Michael Lewyn

September 27, 2011 in Transportation | Permalink | Comments (0) | TrackBack (0)

Nobel Laureate Wangari Maathai Dies at 71

I am saddened to hear news of the death of Wangari Maathai, a Kenyan who was the first African woman to win the Nobel Peace Prize.  Maathai won the prize for founding the Green Belt movement, which empowered Kenyan women to plant more than 40 million trees.  Although I haven't been to Kenya in 15 years, I follow events there closely.  Having seen first hand the challenges women face in traditional Kenyan society - spending hours of their day walking for water, struggling for control over their lives and bodies - I have been so gratified to see Maathai's success over the years.  She will be tremendously missed.

Jamie Baker Roskie

September 27, 2011 in Environmentalism | Permalink | Comments (0) | TrackBack (0)

Diamond on Shared Equity Housing

Michael Diamond (Georgetown) has posted Shared Equity Housing: Cultural Understanding and the Meaning of Ownership, a chapter in the recently published book The Public Nature of Private Property (Ashgate, Malloy and Diamond, eds.).  In it, he examines the place of affordable homeownership resale restrictions in broader notions of private property.  Here's the abstract:

In this paper I examine whether shared equity limitations that are sometimes applied to subsidized affordable housing creates for the owners of such housing a second class ownership status. I conclude that they do not. In support of this conclusion, I look at the meaning of property from both cultural and historical perspectives. I argue that property and ownership are culturally constructed concepts that are understood differently in different cultures and in the same culture over time. I examine the series of limitations that have been placed on property in industrial societies and argue that the limitation on equity is just another in a long list of limitations that society has imposed on ownership in favor of a supervening social good, in this case, the preservation of affordable housing for future generations of low-income homeowners. 

Michael and the other contributors to this book have presented at the wonderful Association for Law, Property and Society annual meetings that he and Robin Paul Malloy have organized these past couple of years at Georgetown.  Registration for the 3rd Annual Meeting this coming March has recently opened and will remain so until January 20th.  

Jim K.

September 27, 2011 in Affordable Housing, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 26, 2011

PIELC Seeks Panel Suggestions

The students at University of Oregon are seeking panel suggestions for their annual Public Interest Environmental Law Conference.  Submit your panel ideas here.  For more details on the conference, which is March 1-4, 2012, visit this page.  And details about previous conferences are available here.

Thanks to John Bonine for the heads' up.

Jamie Baker Roskie

September 26, 2011 in Conferences, Environmental Law | Permalink | Comments (0) | TrackBack (0)

Sunday, September 25, 2011

Bicycle Diaries

At our house we just finished reading Bicycle Diaries by David Byrne (Penguin Group 2009).  Byrne, who most know as the lead singer for the rock band Talking Heads, is also an author, conceptual artist, and bike rack designer.  Here's the fly-leaf copy for the book:

Since the early 1980s, David has been riding a bike as his principal means of transportation in New York City. Two decades ago, he discovered folding bikes and started taking them with him when travelling around the world. DB's choice was initially made out of convenience rather than political motivation, but the more cities he saw from his bicycle, the more he became hooked on this mode of transport and the sense of liberation, exhilaration, and connection it provided. This point of view, from his bike seat, became his panoramic window on urban life, a magical way of opening one’s eyes to the inner workings and rhythms of a city’s geography and population.

Bicycle Diaries chronicles David’s observations and insights — what he is seeing, whom he is meeting, what he is thinking about — as he pedals through and engages with some of the world’s major cities. In places like Buenos Aires, Istanbul, San Francisco, and London, the focus is more on the musicians and artists he encounters. Politics comes to the fore in cities like Berlin and Manila, while chapters on New York City, and on the landscaped suburban industrial parks and contemporary ruins of such spots as Detroit, Pittsburgh, and Columbus are more concerned with history in the urban landscape. Along the way, DB has thoughts to share about fashion, architecture, cultural isolation, globalization, and the radical new ways that some cities, like his home town, are becoming more bike-friendly — all conveyed with a highly personal mix of humor, curiosity, and humanity.

Byrne seems remarkable well versed in urban planning - he's a big fan of Jane Jacobs, for example - and he provides many unique insights into transportation policy and city life.  I'm thinking of adding this book to my students' optional reading list.

Jamie Baker Roskie

PS Yes, I realize this is my second rock-band-related post in a row.  Maybe we need a new subject category?

September 25, 2011 in Books, Comparative Land Use, New York, Planning, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)