Friday, November 4, 2011
As the cleanup in Joplin continues, another potentially deadly hazard has been uncovered, dangerously high levels of lead. According to an article in the Los Angeles Times, “In tests of 43 properties, 18 showed high levels of lead, prompting the city’s mayor to ask the U.S. Environmental Protection Agency and the Missouri Department of Natural Resources for help in testing for, and cleaning up, the element.”
For more than 100 years, beginning in the mid-19th century, Jasper County was at the worldwide forefront of lead and zinc mining. The area included town names like Leadville Hollow and Minersville.
According to Dan Pekarek, director of the Joplin Health Department, a waste product from lead mining called “chat” was dumped in several spots around the city of Joplin, and simply covered with soil. Those sites we likely exposed when the F-5 tornado ripped through the city.
Additionally, in an interview with the Joplin Globe, Pekarek said “Chat was pretty readily available around here, and they used it. It was used as fill for voids around footings and foundations, and to level out crawl spaces.”
As if the poor folks in Joplin haven't been through enough! According to this news release the EPA is offering to enter a cooperative agreement with the city to test for and remediate the lead contamination.
Jamie Baker Roskie
Thursday, November 3, 2011
Well the title pretty much asks the basic question for all of us, right? Peter D. Burdon (Adelaide) has posted What is Good Land Use? From Rights to Relationship. The abstract:
Industrial agriculture is the dominant method for feeding an increasingly urbanised world. However, a growing body of literature suggests that industrial practices are unsustainable and risk global food security. This article examines the legal-philosophical dimension of this literature and the vision of good land use promoted in both industrial and agrarian farming practices. It argues that industrial agriculture is premised on a concept of private property that promotes individual preference satisfaction, separates people from place and fragments landscape. In response, this article examines agrarian farming practices as a means of re-conceiving private property so that it is seen to embrace not only human good, but also ethics and the land itself. By re-conceiving private property as embracing these factors, private property may offer but one solution to the agricultural crisis.
Land use news from Cuba: New law will let Cubans buy and sell real estate. (Paul Haven, AP).
HAVANA (AP) -- For the first time in a half-century, Cubans will be allowed to buy and sell real estate openly, bequeath property to relatives without restriction and avoid forfeiting their homes if they abandon the country.
The highly anticipated new rules instantly transform islanders' cramped, dilapidated homes into potential liquid assets in the most significant reform yet adopted by President Raul Castro since he took over the communist country from his brother in 2008.
But plenty of restrictions remain.
. . . including restrictions on sales to emigrants or foreigners, so shelve those plans to acquire your Caribbean resort. But it's a great step in the right direction for Cuba. Thanks to Adam MacLeod for the pointer!
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
Wednesday, November 2, 2011
I just finished reading Sharon Zukin's great new book, Naked City. One fantastic nuggest is her discussion of gentrification in New York's SoHo district. At one level, Zukin's account confirms the now well-known gentrification cycle referenced above: deindustrialization creates low-rent vacancies in industrial districts; artists are drawn to these districts by the depressed rents and spacious "lofts"; the district becomes a hub of avant garde creativity, generating media attention and foot traffic, both of which create a "buzz" around the neighborhood; shops and restaurants are drawn to the area to cater to the increased foot traffic and capitalize on the "buzz;" the introduction of these shops and restaurants in turn induces more foot traffic, more media attention, and more "buzz;" eventually national chain stores see the area as ripe for investment and begin to move in; finally, of course, each of these trends causes rents to escalate until, with the arrival of deep-pocketed chain stores, the very artists who made the district trendy are priced out. The district ends up as nothing more than a high-end outdoor shopping mall with little street "cred," and the artists relocate to a new low-rent industrial area, triggering the process all over again.
Zukin's book is a work of sociology, but I think it implicitly raises some interesting questions about law's role in the gentrification cycle. Initially, in many cases a rezoning is necessary in order to turn industrial buildings into residential lofts, and then more rezonings may be needed to permit retail commercial uses. After SoHo's experience, Zukin tells us, every city worth its salt wanted to replicate New York's success -- turning a depleted industrial district into a revenue-generating shopping district. Therefore, obtaining the necessary rezonings has been a piece of cake. But local governments want to do more than just allow gentrification -- they want to jump-start the cycle. So cities from Santa Ana, California to Shanghai, China have taken affirmative measures to lure artists into old warehouses and other downtown buildings. It seems to me that while this approach may be necessary in an age of globalization dominated by mobile capital, it is also extremely cynical -- cities are luring artists in the hopes that the artists will spur a renaissance that will then force the artists themselves to leave. Very few cities provide any permanent or semi-permanent protection for artists (such as rent control) because the whole point of the process is to bring in the chain stores to displace the artists (and state courts are divided on whether rent control is even a valid exercise of municipal home rule powers). Zoning has long been seen as a way of addressing perceived market-failures; with gentrification, it seems, municipalities are using their land use powers to accelerate a "natural" market phenomenon. This should give us some pause.
The NYU Furman Center for Real Estate and Urban Policy has just sent out news of its latest fascinating and important study: American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study is authored by co-director Ingrid Gould Ellen, Michael C. Lens, and Katherine O'Regan. From the announcement:
We are pleased to share with you the latest paper from the Furman Center, American Murder Mystery Revisited: Do Housing Voucher Households Cause Crime? The study explores the link between housing vouchers and neighborhood crime rates. More than two million renters now receive Housing Choice Vouchers, which subsidize rent in private apartments. Although voucher holders live in a large variety of neighborhoods, community opposition to vouchers can be fierce due to perceptions that voucher holders will both reduce property values and heighten crime. The widely-circulated 2008 Atlantic Monthly article “American Murder Mystery” highlighted this controversy.
Our study, which examines changes in crime and voucher use over 12 years in ten major U.S. cities, finds no evidence that an increase of voucher holders in a community leads to increases in crime. Instead, we find a different association: that voucher holders are more likely to move into areas when crime rates are already rising. The paper was featured in an article in The Atlantic Cities, and presented September 19 at an internal briefing held at the HUD headquarters in Washington, DC. You can read the full paper here and accompanying fact sheet here.
When it comes to housing and land use, everyone has an opinion, because everyone lives somewhere and has anecdotal information. It's great to have a study like this to clarify popular conceptions based on facts. The Furman Center leads the way in producing these kinds of helpful studies.
Tuesday, November 1, 2011
Back when I was in law school a few of us would joke around about writing a paper on the Third Amendment, since it hardly ever comes up. But now Tom W. Bell (Chapman) has made it relevant, with 'Property' in the Constitution: The View from the Third Amendment, forthcoming in the William & Mary Bill of Rights Journal, vol. 20 (2012). The abstract:
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.
Thanks so much to Adam MacLeod for hanging out with us during the month of October here at the Land Use Prof Blog. He really raised the bar for blogging on land use theory with his series of fascinating substantive posts. We hope he comes back soon. (Now that makes two Faulkner profs we miss).
In the meantime, you can continue to check out Adam's work on his SSRN page.
The only letdown of Adam's time here was that he failed to deliver the promised karma of having a third Notre Dame-affiliated land use blogger, at least in terms of gridiron success. It's now back to just me and my freshman year roommate's brother-in-law.
A guest post from Prof. James L. Olmsted:
Dear Land Use and Zoning Colleagues:
I am writing to inform you about an article that I know many of you will find useful, entitled "Handling the Land Use Case: A User's Manual for the Public Interest Attorney." Although, the article was published in 2004, its subject matter is of current interest in that it provides a nuts and bolts guide for new land use and zoning attorneys to develop a land use practice. As the article is written for new attorneys, it will also be of great interest to your students who are interested in pursuing careers in this field. The article will likewise be fascinating to experienced practitioners and academics as the article candidly and comprehensively reveals the tactics that are invariably deployed, both openly and secretively, by both sides in any major land use battle. Few, if any, other articles expose this under-belly of the land use process in such detail. If anyone can help make this article available to colleagues or land use and zoning oriented law students by directing them to my SSRN site I would greatly appreciate it. Also, I invite anyone who would like to co-author an update of the article to contact me at www.landprotect.com. This would be an interesting and most worthwhile project, and I can guarantee publication in a law review (e.g., I am certain that the Journal of Environmental Law & Litigation would love a chance to update this article). Also, if anyone would like to co-edit a book with me on the subject of land use planning and zoning in the 21st century, I would also be most interested in such an offer. My preferred publisher would be Island Press, and I would do the leg work of drafting the publication proposal. On my SSRN site “Handling the Land Use Case” can be downloaded for free.
Best regards, James L. Olmsted, Adjunct Faculty University of Oregon School of Law.
We welcome guest posts from land use professors and practitioners - our contact info is available in the bar on the left side of this page.
Jamie Baker Roskie
Climate change may be a politically charged topic in Washington, but as we all know, states and communities don't have the luxury of waiting for the federal government to act.
Facing extreme storms, flooding, drought, and water shortages, those on the front lines are responding now to the impacts of climate change (whether they use the words "climate change" or not) and are being forced to rethink planning for everything from roadway design and location to building standards to development along our nation's coasts.
- The Adaptation Clearinghouse - A new online community and database to help planners find and share policies that address climate change impacts. Policymakers, reporters, and the public can find adaptation policies and plans created for their communities.
- Adaptation Case Studies in the Western United States - Two new case studies explore water shortages in the West and the protection of a ground-dwelling bird: the greater sage grouse. The report looks at the policies and unique approaches being adopted in Colorado and Wyoming, in particular, to tackle the problems - even though the solutions may not be adopted with the sole intent of addressing climate change.
- Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use - A new report issued by the Georgetown Climate Center looks at 18 existing land use tools that communities can use to prepare for rising sea levels and the flooding that will result from climate change.
Monday, October 31, 2011
Hey, I just checked our stats and sometime earlier today, we had our 100,000th visitor at the Land Use Prof Blog! Also today, we reached 150,000 page views. Very cool!
Thanks to blog founder Paul Boudreaux; to all of our regular and guest bloggers; and most of all, thanks to everyone for reading!
We hope that you'll keep coming back and checking it out.
Earlier in the year, I blogged about a decision (Ibañez) by the Massachusetts Supreme Judicial Court finding as invalid a land title claimed by a foreclosing bank that could not show that it held the mortgage at the time of foreclosure. Prior to that ruling, a stated practitioners' standard recognized as curative post-foreclosure assignments of mortgages. The Bevilacqua v. Rodriquez case presented the Court (previously blogged about here) with similarly sloppy handling of the mortgage assignments but also a third-party purchaser (and redeveloper) of the property from the foreclosing bank.
Earlier this month, the Mass. SJC again found that the foreclosing bank had no title to transfer and that the title claimant's more sympathetic position with regard to the botched securitization process did not create title. The Court dismissed his "try title" action and suggested that his equitable rights to the (as yet unforeclosed) mortgage might support a possible reforeclosure--a less than reassuring directive if the purchaser has invested in the property more than the lien value of the mortgage.
Just got back from trick-or-treating with Peter Pan and a human pineapple. As they sort through the loot, I'm reminded of the increasing trend towards regulating Halloween activity. Where I grew up there weren't any rules, just social norms that controlled things like how late kids could reasonably stay out ringing on doorbells (with law enforcement as a backstop for teenagers out too late or too unruly). But then a few years ago I moved to a town in Ohio, and was surprised to learn that the town promulgated "official trick-or-treat hours" . . . and I'm not 100% sure on this, but I think the official hours to trick-or-treat were the day before Halloween, because it fell on a Sunday, or something. To get even more land use-y, it was restricted to residential neighborhoods only (not sure why you'd want to do otherwise).
Just trolling around the web tonight, I came across this Yahoo article compiling Bay Area Halloween Laws and Regulations. A few examples:
- Sex offenders: stay home; no candy; no decorations, and expect a police visit.
- Curfew laws enforced-- 10 p.m. seems like the most common time for Halloween curfew.
- Parades: several communities have kids' parades, requiring street closures, permits, police.
- Street festivals: for the second year in a row, the Castro District celebration has been cancelled; therefore traffic, parking, etc. will not be disrupted.
- Public safety: last year there was gunfire at an Oakland festival; expect tighter restrictions on large gatherings.
One other thing I have observed the past couple of years: people driving their kids to the more pedestrian-friendly, slightly denser, but still single-family residential neighborhoods to trick-or-treat-- the "sweet spot" (if you will) of efficient foot travel and probability of treats at each house. It turns out that kids are intuitively rational candy-maximizers. Happy Halloween!
Imagine a state law that prohibited mortgagees from foreclosing on defaulting mortgagors if those mortgagors were women. This would strike many people as unjustly discriminatory but I suspect many people would have a difficult time articulating why. It doesn't make much sense to say that this law violates some right of the woman-mortgagor, since no sensible person would claim a right to be foreclosed upon. On the other hand, the law discriminates on the basis of sex in an arbitrary way.
Of course, property profs have a ready answer. If mortgagees cannot foreclose against female mortgagors then women have effectively been prohibited from conveying the right of foreclosure in the mortgage instrument, and this will drive up the cost women will pay for obtaining credit. The effect of the law is discriminatory against women. But this doesn't seem to get all the way at the problem, because the discrimination appears to be intentional.
This was the puzzle of common law coverture. Far from arguing that coverture violated their rights, many married women actually invoked coverture in order to avoid debts that they had voluntarily incurred. For this reason, as I argued in this article, I think coverture challenges the simplistic rights language of liberalism.
Here again, the common-goods approach provides a superior explanation. Coverture was unjust because, as the high court of Texas observed in 1851, it deemed the married woman, as a result of her marriage, “divested of her faculties as a rational being." As another court noted, coverture rested upon the assumption that "married women were incapable of managing their business dealings." By freeing the married woman to exercise sovereignty over her assets, laws abolishing coverture treated her as a fully reasonable and responsible moral agent, capable of exercising the “right of disposition, control, and management."
The history of coverture and its abolition teaches an important lesson about property. Owner sovereignty is not merely a matter of rights. Property owners exercise sovereignty over their assets by reasoning about ends and purposes and choosing among intelligible reasons for action. The core of property—the owner’s sovereignty over his or her assets—secures a zone of freedom within which the owner uses assets to create new projects, commitments, and states of being, which other people might not value. If a common-good theory of property is defensible (I have argued on this blog that it is) then property presupposes the capacity of human beings to make pre-moral choices of and among basic human goods, to create reasons for action by undetermined choices, and to make those choices in pursuit of genuine goods for the benefit not just of the property owner but also of those with whom the owner-sovereign is in community.
Owner sovereignty thus enables free choice (what some would call personal autonomy), which is a distinctly human achievement. Legal doctrines that fail to account for and respect the capacity for freedom, responsibility, and practical reasonableness in a class of persons are not merely unwise, but also are inconsistent with human dignity, and are for that reason unjust.
This suggests that there are principled limitations upon the state's regulation of land use. Owner sovereignty is not merely a matter of expedience, efficiency, or prudence. As a matter of principle property law must respect the core of owner sovereignty, which frees the property owner to choose. And on this view, the canonical police powers, which the state exercises for the health, safety, morals, and general welfare of its citizens, correspond to truly common goods. The police powers are not arbitrary. This entails that they must not be exercised in arbitrary ways. If the good of citizens is truly common then the state cannot justify its actions on the ground that a loss by a property owner is outweighed by the collective good of the greatest number. Rather, the state may act only to protect a truly intelligible end, which the action of some property owner threatens.
For those of you, like me, who love New York City and are interested in its zoning code, I am enclosing a link to a fantastic interactive map that provides all sorts of detailed information about New York's zoning changes since 2002. As critics have noted, the reason New York is doing all of this piecemeal rezoning is because it has not comprehensively revised its now-outdated zoning ordinance since 1961.
On a related note, the Municipal Art Society recently hosted a panel discussion about New York City's zoning ordinance to coincide with the 50th anniversary of the existing law. Official Land Use Prof Vicki Been of NYU moderated the discussion and, as this blog post recounts, had some very interesting insights.
We're having our own mini-controversy here in Athens over the Occupy Wall Street-related protests. The Occupy Athens protesters are stationed outside The Arch, known as the "front door" to the University. It's the entrance to the historic north quadrangle, and the main entrance from downtown Athens.
As outlined in this article from the local paper, the UGA police chief has been warning the protesters not to block The Arch or the stops leading up to it. I've passed this protest on foot and in my car several times, and while protesters have been standing on the steps and near the Arch, I've never had my way blocked, nor seen them block anyone else, but apparently there have been complaints. Now a UGA law professor has weighed in to say that the University is violating the protestors' free speech rights.
There have been arrests and violence at Occupy protests all over the country, mostly notably in Oakland. I doubt very much we'll see anything that dramatic here - we tend to be polite and quiet here in Athens, even in our protesting.
Jamie Baker Roskie
UPDATE: Some interesting parallels between the situation in Athens and controversy over Occupy London's site on the steps of St. Paul's Cathedral - as reported in The New York Times. The City of London Corporation is suing to have the encampment removed:
Last week, the corporation went to court to seek an order dismantling the St. Paul’s camp as a breach of the historic right of unimpeded access to the country’s “highways.” Though the St. Paul’s encampment is concentrated on the cathedral forecourt, a pedestrian area in normal times, a corporation executive, Michael Wellbank, overlooked the distinction. “Protest is an essential right in democracy, but a campaign on the highway is not,” he told reporters. “Encampment on a busy thoroughfare clearly impacts the rights of others.”
Sunday, October 30, 2011
From the Wall Street Journal's Developments blog: What Occupy Wall Street Owes to Zoning.
Occupy Wall Street’s monthlong protest has been helped by donors willing to supply food, temperate fall weather and support from organized labor and some elected officials. But a less-visible asset has proved a big boon for the protesters: New York City’s land-use policy.
The geographic center of the protest is lower Manhattan’s Zuccotti Park, a one-block collection of trees and benches that is owned by an office landlord, Brookfield Office Properties Inc. Private ownership actually makes the space more accessible than public parks, many of which close at night.
As discussed in a Journal article on Saturday, the city’s zoning code requires that many privately owned parks be open to the public at all times — one of the factors that made Zuccotti Park a hospitable venue for the protesters’s all-hours encampment.
Termed a “privately owned public space” — or POPS, in zoning parlance — these plazas stand at the intersection of capitalist instinct and public interest. The zoning code puts restrictions on the scale of towers that developers are allowed to build. In an attempt to add public space in Manhattan without buying new parkland, city government allowed developers to build bigger structures if they set aside a plaza that remains open to the public.
While many of these are tucked away in the backs of buildings or in lobbies, Zuccotti Park turns out to be one of the most accessible POPS in the city. Of course, there is an irony that the space in which Occupy Wall Street has found a continued home is owned by the city’s largest landlord for financial services firms — the very industry they are protesting.
Greg Lastowka (Rutgers-Camden) has posted Property Outlaws, Rebel Mythologies, and Social Bandits, Cornell Journal of Law and Public Policy, Vol. 20, p. 377, 2010, reviewing Eduardo Peñalver and Sonia Katyal's book, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale Univ. Press 2009).
Lastowka notes that he agrees with much of the authors' analysis, and highlights a few areas of disagreement: (1) he suggests that the popular image of outlaws in society is actually not all that bad; (2) there are a great many outlaws who are "bad" and don't offer any socially useful outcomes; (3) whenever redistributionist outlawry is necessary, that is the sign of a failed state, and therefore should not necessarily be celebrated; (4) while property disobedience can be heroic for the information value it communicates, it likewise should not be necessary unless there is a breakdown in functioning democratic society.
[Note that the above synopis is mine and not the author's, since the review essay didn't include an abstract].
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- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
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