January 29, 2011
Baltimore City Sign Ordinance Struck Down
U.S. District Court Judge Marvin Garbis issued his decision yesterday in O'Brien v. Mayor and City Council of Baltimore. Finding it contrary to the First Amendment, the court invalidated a 2009 Baltimore City ordinance that required any organization advertising pregnancy-related services to disclose through signage lack of counseling or referrals for abortions or birth control. The Archdiocese of Baltimore brought the suit on behalf of its pregnancy counseling centers operating in Baltimore. According to today's article in the Baltimore Sun, City Solicitor George Nilson will advise Mayor Stephanie Rawlings-Blake, lead sponsor of the bill while she was on the City Council, to appeal.
Introducing Tony Arnold
He probably needs no introduction, but we're thrilled to have Craig Anthony (Tony) Arnold join us on the blog. At the University of Louisville, Tony is the Associate Dean for Academic Affairs & Faculty Development; Boehl Chair in Property & Land Use; Professor of Law; Affiliated Professor of Urban Planning; and Chair of the Center for Land Use & Environmental Responsibility. Somehow, Jamie Roskie found a way to persuade or trick Tony into agreeing to add "Contributing Editor, Land Use Prof Blog" to that list of prestigious titles.
Tony has published widely (click his SSRN link on the left side) and has been involved in a great many land use and environmental law and policy issues, from the legal academic, interdisciplinary, and practitioners' perspectives. You can also check out his own blog for UL. As a Contributing Editor, we look forward to hearing from Tony whenever his schedule allows. As one of the leading scholars in our field, it's really a great honor to have Tony join us.
January 28, 2011
Yes, there are Grocery Stores in Detroit
The Urbanophile shares a story by James Griffioen called Yes, there are Grocery Stores in Detroit. Griffioen is responding to the oft-repeated assertion that the city of Detroit--still the 11th largest city in America with over 800,000 people--does not have any major national chain grocery stores in the city. This asserted fact is often invoked to illustrate arguments about urban decline, problematic land use arrangements, Detroit's particularly sad problems, and the current focus on the link between poverty and health and obesity in urban areas. Griffioen says that the narrative of grocery-less Detroit is . . . a canard (he uses a more pungent term involving bovine scatology).
In the time I’ve lived in Detroit, I’ve come to realize that the most sensational claims and the public perception they create often have little to do with the day-to-day reality of being a Detroiter. This is a complicated city, and even in the most sincere efforts to cull some truth from it, visiting journalists often end up spreading damaging falsehoods.
One of the most annoying is that Detroit has no grocery stores. . . .
What surprises most people who've heard that there are no grocery stores in Detroit is that there are actually independent stores far more appealing than any chain. One of the nicest grocery stores in Detroit is Honeybee La Colmena (I wrote an extensive profile about the store here). Honeybee is owned and operated by individuals who grew up and still live in the neighborhood where the store is located and they have created dozens of jobs for their neighbors. Honeybee has some of the best produce and prepared foods in the metro area, and it is actually a Detroit supermarket where people from the suburbs come into the city to shop.
Griffioen acknowledges that there are indeed parts of Detroit that are underserved by the market, but it is important to note that cities are often much more complex than any attempt to reduce them to a generalized observation or metaphor.
Wiseman on Expanding Regional Renewable Governance
Hannah J. Wiseman (Tulsa) has posted Expanding Regional Renewable Governance, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011). The abstract:
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a renewable parcel is identified, a new piece of property is superimposed upon existing boundaries and jurisdictional lines. The entities within these boundaries all possess rights to exclude, and this creates a tragedy with strong anticommons and regulatory commons elements, which hinder renewable development. This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address the governance challenges in renewable development, and it analyzes elements of existing regional institutions to suggest the ideal structure of this agency. Once formed, the regional framework should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
McFarlane on the Geography of the Black Middle-Class
My colleague, Audrey McFarlane (Baltimore), has posted Operatively White?: Exploring the Significance of Race and Class Through the Paradox of Black Middle-Classness, 72 J. Law & Contemp. Probs. 163 (2009). Here's the abstract:
The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The term "gentrification" suggests wealthier Whites displacing poor Blacks. Little attention has been paid to the significance of the increasing numbers of Blacks stepping into middle-class roles formerly held almost exclusively by Whites. Taking both race and class into account seems to demand exploration of the significance of Blackness and affluence within an existing societal structure that has evolved from white supremacy to a seemingly less-virulent, or more-benign, white norm - one in which normalcy, wealth, advantage, and presumptions of innocence are still implicitly predicated on Whiteness and in which an economic structure of white privilege and black disadvantage is inscribed into the geography of the physical landscape.
The reality that middle class homeowners, whether Black or White, seek to avoid the disadvantages of poverty presents a divide in black racial solidarity based on class. However, because of structural disadvantage in racially segregated neighborhoods, the black middle class are not as successful at getting away nor in protecting their turf as white middle class are. In effect this is a racial disadvantage but certainly a paradoxical one. It involves a disadvantage in escaping the poor and disadvantage in exercising privilege at the expense of the poor. Using the example of the black middle class, it is possible to see that the vestigial oppression of slavery and the domination of white supremacy have morphed but have not been eliminated. Instead, those institutions have been disaggregated into discrete, wealth-based components of Blackness and Whiteness. Thus, Blacks with money are privileged in certain limited circumstances to be operatively white. Through their wallets and educational or professional attainments they gain access to some of the privileges, goods, and services formerly reserved exclusively for Whites. Thus, this article considers challenges and opportunities of Blackness and middle-classness in its twenty-first century context of being "operatively white." Specifically, how should neighborhood land use conflicts be regarded if poor Blacks are disproportionately, negatively affected in relation to affluent Blacks? That racialized impact should not be dismissed as being purely about class just because the affluent are also black. Problems of class in the United States are racialized; they are never separate from the racial structures of subordination that still operate here. Accordingly, problems currently cognizable as being merely about class are necessarily still cognizable as problems of race.
In order to enrich our ability to give race and class the sophisticated and probing account that their complex interaction calls for, this paper takes the concept of racialized class to its logical end and explores the ways in which racial identity and racial social position are affected by class. Because race and class are structurally inscribed into the landscape, racial justice is considered to require economic liberation. Economic liberation comes, however, at the expense of the black poor. Therefore, there cannot be racial justice without economic justice.
New ALPS Info...
With the ALPS conference being just over one month away, you can find some new info on the website including some of the conference papers that have been posted.
A participants list has been posted, too. Looks like a great line-up.
Several of yours truly Land Use Prof bloggers will be on a panel together. If you're attending, let us know and we'll try to set-up an informal Land Use Prof gathering.
January 27, 2011
Zoning Out Young Students
Antonia Layard recently posted about new planning restrictions in the UK limiting the number of unrelated people occupying a house. These restrictions are not uncommon in the US, particularly in college towns. For example, Northwestern University students are in an uproar because the town of Evanston has decided to start enforcing an old ordinance, quaintly called the "brothel rule," forbidding more than three unrelated people living together.
Athens has an even stricter requirement that no more than two unrelated people can live together. However, in my experience this rule is rarely enforced. I have no issue with most of the student households in our neighborhood, but occasionally we get a group of three (usually very young) folks living in the house next door and engaging in loud partying and/or having incessantly barking dogs. I've had much more luck working directly with the tenants and the landlord, though, than I have getting Code Enforcement to come out and investigate.
Another current area of conflict in Athens is the placement of a fraternity in a historic neighborhood of Athens that is already home to several fraternities and sororities, but also to many families and working adults. This is one of the many, tricky balancing questions in land use law. How do we accomodate young folks who are still forming as individuals and learning what it means to be part of a community, without burdening the neighbors who need their beauty sleep and grow tired of noise and garbage?
Jamie Baker Roskie
Ramello on Property Rights, Externalities, and Knowledge
Giovanni Battista Ramello (University of Eastern Piedmont; ICER) has posted Property Rights and Externalities: The Uneasy Case of Knowledge. The abstract:
Drawing from Coase’s methodological lesson, this article discusses the specific case of knowledge, which was for a long time chiefly governed by exchange mechanisms lying outside the market, and has only recently been brought into the market. Its recent, heavy “colonization” by the property paradigm has progressively elicited criticism from commentators who, for various reasons, believe that the market can play only a limited role in pursuing efficiency in the knowledge domain. The article agrees with the enounced thesis and tries to provide an explanation of it that relates to the fact that in specific circumstances property-rights can produce distinct market failures that affect the social cost and can consequently prevent attainment of social welfare.
In particular, the arguments set forth here concern three distinct externalities that arise when enforcing a property rights system over knowledge. First, the existence of a property right may itself alter individual preferences and social norms, thus causing specific changes in individuals' behaviour. Second, the idiosyncratic nature of knowledge, as a collective and inherently indivisible entity, means that its full propertization can be expected to produce significant harm. Third, property rights can cause endogenous drifts in the market structure arising from the exclusive power granted to the right holder: though generally intended as a necessary mechanism for extracting a price from the consumer, in the knowledge domain property rights can become a device for extracting rents from the market.
This article is especially interesting right now because my Property I classes, reading Dukeminier, are exactly at the transition between economic theories of property and acquisition by creation (IP). We've talked about the externalities associated with strip mining and urban parking, and now will be going forward into the questions of property in knowledge.
Public or Private?
In the UK the Government’s latest plans to sell off the Forestry Commission’s woodland estate have caused uproar, with campaigners including Dame Judi Dench, the Archbishop of Canterbury and Annie Lennox characterising the suggestion as ‘misjudged and short-sighted’. While the Government are now backing down in part, proposing to set up charitable trusts to own and manage the majority of the sites, they are still selling off a sizeable proportion of the country’s forests to private companies. This has led me to think about whether it matters whether land or forests are privately, charitably or publicly owned if the regulatory requirements and management systems are the same regardless of ownership.
I have been thinking this partly as a lead up to the ALPS conference (deadline 30th January if you haven’t registered yet) as I’m planning on introducing some research I’m doing on the privatisation of public space, questioning whether it matters whether property is publicly or privately owned.
The question that is currently engaging my thoughts on both woodlands and urban public spaces is whether it matters whether property is publicly or privately owned. There are restrictions on use in either case. But does public property feel different? Do we feel a sense of involvement, engagement, a historical connection with property that is publicly owned? Do we automatically feel constrained on privately owned land? I’ve never seen this investigated, so if anyone has any leads, I’d be delighted to hear them. Perhaps it doesn’t matter, ultimately we are constrained by legal, social and personal constraints on our actions in any case. It certainly never bothered Robin Hood.
Schutz on Grassland Governance and Common-Interest Communities
Anthony B. Schutz (Nebraska) has posted Grassland Governance and Common-Interest Communities, published in Sustainability Vol. 2, pp. 2320-2348, 2010. The abstract:
In the United States, today’s ranches are engaging in small-scale nature-based endeavors to diversify their income base. But the geographic boundary of the land they own creates a relatively small area within which to operate, and fragmented ownership diminishes the ability of any single landowner to produce nature-based income. Collective action among nearby landowners can produce a set of resources from which all members of the group can profit. Such action can enhance the economic, social, and environmental sustainability of grasslands and the populations that use them. This article shows that common-interest communities can be used to provide and allocate wildlife and other resources on ranchlands, enabling individual landowners to generate more income from selling nature-based experiences to customers. Common-interest communities are familiar in urban settings but they have not yet been used in this setting. Thus, the article proposes a new approach to ranchland management based upon a familiar set of largely private legal arrangements. More broadly, the article illustrates the relevance of private law and private property to sustainable development by explaining how property owners can use private law to engage in environmentally beneficial and economically profitable enterprises on the vast privately owned landscape of the U.S. Great Plains.
January 26, 2011
Land Use in the State of the Union
I didn't have time to watch it last night, so I asked my students this morning to identify the land use issues in the President's speech. They mentioned two things: high-speed rail, and clean energy. From the Associated Press report, here's the key quote on HSR:
Within 25 years, our goal is to give 80 percent of Americans access to high-speed rail. This could allow you to go places in half the time it takes to travel by car. For some trips, it will be faster than flying - without the pat-down. As we speak, routes in California and the Midwest are already under way.
Potentially faster than flying, and they won't touch your junk! And here are two early responses. First, from Transportation Secretary Ray LaHood's Fastlane blog, America has a Future to Win; DOT stands ready to help:
As the President said last night, American businesses and workers are now competing in a global economy. If we are to thrive in competitive markets, we must be able to move goods and people faster and more reliably than ever.
At DOT we have been working hard to help do just that. And the projects we are supporting to rebuild America's transportation infrastructure are creating good jobs for American workers.
But the Reason Foundation's Samuel Staley is not so sanguine. Noting that the President cited China's massive investments in HSR, Staley argues that historical, economic, and geographic factors will render a similar HSR program impractical in the U.S. From President Obama, China, High-Speed Rail and the Sputnik Moment:
A key factor in ensuring high-speed rail's success is the closeness of employment and population centers. The largest Chinese cities aren't nearly as spread out as U.S. cities in terms of distance and the high speed rail lines are connecting larger urban cities.
China has 120 cities with populations of one million or more, and its cities are expected to add the equivalent of another United States - 300 million people - by 2025. The high-speed rail line will connect to most cities with populations greater than 500,000. Given existing levels of very low mobility and income, rail would be a natural beneficiary of rising travel demand as the travel market matures.
It will be interesting to see where the debate over HSR goes from here, particularly in light of the new fiscal and political constraints. I'm also curious about how many people out there may not have thought very much about the HSR issue before the President gave it a mention in the State of the Union.
UPDATE: I was planning on posting this anyway, but then as I was preparing for my afternoon Property I class, I realized it's a great tie-in to the famous INS v. Associated Press case that was assigned for today: If INS can't report the news it learns from AP's public bulletin, how come it's OK for me to blog about information I got from the AP's website? Discuss! Fun stuff.
Panel on "Premature Subdivisions" for New Partners Conference
Call them the new ghost towns - "premature" subdivisions that have been laid out in anticipation of a continuing housing boom and unfettered growth at the periphery. In many areas there is a large surplus of already platted lots, improperly located to foster smart growth. Teton County, Idaho has granted development entitlements in the rural countryside sufficient to quadruple their population. Most of these lots have non-existent or poor services.
Even in areas that expect large increases in population, these premature subdivisions are in the wrong location to foster smart growth patterns. In Arizona's Sun Corridor, approximately one million undeveloped lots, many not even platted yet, have been entitled and would lead to further sprawl.
The current economic downturn provides an opportunity to address past impacts, better anticipate and prepare for future growth and improve property values, says senior fellow Armando Carbonell, who will be moderating a panel, Reshaping Development Patterns, at the New Partners for Smart Growth conference in Charlotte Feb. 3.
Carbonell sees an opportunity to redesign communities to transfer development pressure from previously approved development areas to foster more sustainable development. For example, in the suburbs of the Northeast, there are projects that remake the suburban highway, turning "edge city" districts into compact mixed-use centers, and using green infrastructure strategies for shaping new communities at the metropolitan fringe."There's a sponge-like capacity to accommodate population growth without any further peripheral development," says Carbonell.
The panelists exploring these issues will be Arthur "Chris" Nelson, Metropolitan Research Center, University of Utah, on demographic and population trends; Jim Holway, head of Western Land and Communities, the Lincoln Institute-Sonoran Institute joint venture; and Thomas Wright, executive director of the Regional Plan Association of New York, Connecticut and New Jersey.
New Partners for Smart Growth this year marks its 10th anniversary as a collaboration of the Loal Government Commission and the Environmental Protection Agency.
"Premature subdivisions" aren't just a western or northeastern problem - we've seen a fair number of them here in Georgia as well. If any of our readers attend this session, or any other session at the New Partners conference, please send us a report!
Jamie Baker Roskie
January 25, 2011
An Interesting Award Competition...
Though its not precisely law-based in its focus, for those interested in key land use issues, this award competition sounds quite interesting:
The James D. MacConnell Award recognizes an outstanding, comprehensive planning process, which results in educational facilities that serve the needs of students, staff, and the community, and facilitates student achievement. Emphasizing the connection between the planning process and the end-result, a healthy, high-performing school facility, the James D. MacConnell Award uniquely assesses how well a school facility supports the academic program of the school district. With on-site interviews of students, school staff, community stakeholders and the design team, the jury thoroughly evaluates the entire process of building a school.
Learn more about deadlines and other competition information, here.
Chad Emerson, Faulkner
Scouting, Walking, & Blogging New York
Among the many reasons that I am passionate about the subject of land use law, these three are among the most important: First, it is historical--studying land uses in our cities, towns, and rural areas gives us a sense of how we lived and how our places have changed over time. Second, it is an essentially visual subject--to see the land and the built environment, whether in person or through pictures, is an important part of thinking about the effects of law and policy. Third, and related to the first two, is that land use tells stories--whether over the course of time or within present-day issues and controversies, land use provides a narrative about how we live with each other in our communities and in society.
That's a long-winded way of leading up to the observation that I really like two websites that I stumbled across recently and want to share with you. Neither is written by a lawyer or a professor, but both involve the efforts of thoughtful and observant people to walk the streets, drive around the region, and post pictures, descriptions, and stories about the land, buildings, neighborhoods, and cities, both past and present.
The first is Scouting NY. Its proprietor is a professional film scout, who describes his endeavor thusly:
I work as a film location scout in New York City. My day is spent combing the streets for interesting and unique locations for feature films. In my travels, I often stumble across some pretty incredible sights, most of which go ignored daily by thousands of New Yorkers in too much of a rush to pay attention.
As it happens, it's my job to pay attention, and I've started this blog to keep a record of what I see.
And we all benefit from that. For an example, the current feature at the top of the blog is a collection of photos and descriptions of an abandoned mental asylum in Rockland County. Creepy and fascinating.
The second website I want to link to is Forgotten NY, run by graphic designer Kevin Walsh. This one seems to be more focused on the city proper and its various neighborhoods. The MO seems to be more about the street-level observation, by talking walks around the various parts of the city and reporting descriptions and photos, and giving us an insight in to the New York of the past through the evidence that still lingers today. The current feature is "A Walk from South Williamsburg to Bedford-Stuyvesant," with copious photos. This site looks like it's been around for about a decade and has a strong readership, but I never came across it until just recently.
These two happen to be about New York. I suspect that there are many more great blogs and websites out there, about New York and also about other places, which seek to illuminate, record, preserve, and tell the stories of our places, run by folks who are passionate about their communities past and present. If you know of or would recommend any similar sites, I'd love to hear about them.
Owley on Conservation Easements at the Climate Change Crossroads
Jessica Owley (Buffalo) has posted Conservation Easements at the Climate Change Crossroads, forthcoming in Law and Contemporary Problems. The abstract:
The essence of a conservation easement as a static perpetual restriction is coming to a head with the understanding that the world is a changing place. This demonstration is nowhere more dramatic than in the context of global climate change. In response to this conflict, users of conservation easements face the decision of either (1) changing conservation easement agreements to fit the landscape or (2) changing the landscape to fit the conservation easements. Both of these options present benefits and challenges in implementation. Where conservation easement holders’ ultimate goal is to keep a maximum number of acres under protection from development, flexible conservation easements may present a viable and attractive method of protection. Where a specific conservation value or habitat is the concern, active management of the land may be more appropriate. As a further complication, both of these options are at odds with the essential nature of conservation easements. These conflicts lead to a third option: making different decisions about where and how to use conservation easements. This would likely lead to the conclusion that conservation easements are only desirable in a narrower category of purposes. This is, of course, dismaying to champions of conservation easements. Unfortunately, ensuring the long-term viability of conservation easements may entail omitting the very features that give conservation easements their strength.
This is another article from Professor Owley that challenges some prevailing views on conservation easements. On a side note, I can hint that we might be hearing more from her soon in this space!
Fellowship at Vermont Law
From Teresa Clemmer:
We are recruiting a new law fellow to head up the toxics program within the environmental clinic at Vermont Law School, known as the Partnership for Justice. In collaboration with Toxics Action Center, the law fellow will be helping to supervise JD students in providing legal advice to communities dealing with contaminated sites and toxic pollution sources throughout northern New England. The law fellow is expected to work part-time in the clinic for two years while pursuing an LLM degree. The fellowship includes a full tuition waiver, $35,000 stipend, and health benefits. Please pass this along to anyone you know who might be interested. For more information, please see the announcement on our website and contact our Litigation Paralegal and Office Manager, Monica Litzelman, at firstname.lastname@example.org with any questions.
Jamie Baker Roskie
January 24, 2011
The Seaside Institute...
The Seaside development in South Walton County, Florida has been one of the higher profile new urban projects over the years. Master-planned by Andres Duany and the DPZ firm, the project has been featured in numerous magazines, case studies, and even as the set for Jim Carrey's The Truman Show.
In addition to being a fascinating place to visit and explore, the founders had the foresight early on to set up a non-profit organization to advance the land use principles that Seaside represents.
Known as "The Seaside Institute", the organization recently came under the leadership of an excellent new Executive Director and has published a new website with many interesting New Urban land use resources.
Chad Emerson, Faulkner
First Ibanez, next Bevilacqua: Title Insecurity and the Mortgage Securitization Mess
The most viewed business article today on the Boston Herald website examines the next foreclosure-mess case coming to the Supreme Judicial Court of Massachusetts and its impact on the title marketability of foreclosed homes there. Francis Bevilacqua paid for a property in Haverhill, Mass. pursuant to a foreclosure on a mortgage in a securitized trust supervised by U.S. Bancorp. Judge Keith Long of the Massachusetts Land Court found that Bevilacqua had no title to the property because the foreclosure was invalid. In its recent decision in U.S Bank v. Ibanez (see my earlier post), the SJC upheld another Judge Long decision finding a completed U.S. Bank foreclosure to be invalid.
According to an attorney quoted about the foreclosure buyer's predicament, even should he lose on appeal, Mr. Bevilacaqua may be able to take advantage of a color-of-title-shortcut adverse possession statute and obtain valid title in as little as three years. (To think, I was concerned that nonjudicial foreclosures and botched mortgage securitizations might combine to create serious, widespread title problems.) Stay tuned, the SJC will hear the case in April.
8th Annual Brigham-Kanner Property Rights Conference-October 2011 in Beijing
William & Mary Law School has announced that the 2011 Brigham-Kanner Prize will be awarded to Justice Sandra Day O'Connor at the Eighth Annual Brigham-Kanner Property Rights Conference, which will be held Oct. 14 & 15, 2011 in Beijing, China. Per W&M's website, "the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights." Past honorees include Frank Michelman, Richard Epstein, Peggy Radin, Bob Ellickson and Carol Rose.
January 23, 2011
The Redevelopment of Haiti...
One of the strongest advocates for sustainable development is none other than Prince Charles of England.
His organization, The Prince's Foundation for the Built Development, is a leading advocate and developer of context sensitive development that balances pedestrian needs, vehicular needs, and sustainability needs.
They are now embarking on another noble project--a charrette that focuses on the redevelopment of Haiti following the earthquake.
You can follow the project and gather details here.