Saturday, November 19, 2011
In a recent post on the Atlantic Cities blog, Roberta Gratz suggests ("argues" would probably be too strong) that the planning community has long been a boys' club that eschewed the contributions of women, principally citing the way in which planners and planning thinkers dismissed Jane Jacobs as a mere "housewife." Gratz also notes Jacobs' belief that women tend to approach planning from a different perspective than men do, a perspective that is sorely needed in planning circles. And what perspective is that, you ask? (Warning: Gender stereotyping ahead) Men like to bulldoze things and replace them with big shiny objects like stadiums and skyscrapers, while women focus on cultivating the home, family, and community.
I am not going to opine here on the merits or demerits of gender essentializing (but feel free to have at it in the comments!) I do wonder, however, whether it is fair to criticize people for pigeonholing Jacobs as a "housewife" when she herself plainly drew upon the virtues of housewifery in claiming that women had a unique perspective on planning. It may be that Jacobs was cleverly attempting to appropriate a frequent criticism used against her and turn it to her advantage. But her remarks may also have had some unintended consequences. Intriguingly, Jacobs's rhetoric echoes one side of the early twentieth century debate over women's suffrage. While radical suffragists saw the movement as a challenge to the patriarchial social culture that placed men and women in "separate spheres" (home/women vs. work/men), a more pragmatic wing of the suffrage movement argued that, in fact, women's suffrage was consistent with the separate spheres ideology because government itself was nothing more than "enlarged housekeeping" for which women were peculiarly suited. It was only once this latter wing became prominent that women's suffrage really gained any traction.
Of note for the land use prof here, the idea of government as a form of "enlarged housekeeping," reinforced by the suffrage movement, contributed to the adoption of Euclidean single-use zoning in which home was rigidly separated from work (thus entrenching women's role as housewives), as well as the NIMBY ideology that local government's primary function is the protection of the single-family home against invasion. (Oh, I almost forgot, I have written about this issue before, where I argued that women's suffrage, the emancipation of organized labor, and the empowerment of the suburb through the zoning power were all related movements).
So, by embracing the idea of fixed gender roles, Jacobs may have unwittingly abetted an ideology that facilitated suburban sprawl, gender inequality, and NIMBYism. In fact, she has been accused of being the progenitor of the NIMBY movement.
Friday, November 18, 2011
From the Sustainable Communities folks at EPA:
New Partnership for Sustainable Communities Report:
Supporting Sustainable Rural Communities
The HUD-DOT-EPA Partnership for Sustainable Communities and the USDA has
just released Supporting Sustainable Rural Communities, a report that
discusses how the four agencies are collaborating to support rural
communities. This publication highlights how small towns and rural
places across the country are using federal resources to strengthen
their economies, provide better quality of life to residents, and build
on local assets such as traditional main streets, agricultural lands,
and natural resources.
The report includes sections on how HUD, DOT, EPA, and USDA programs
support environmentally and economically sustainable growth in rural
places; performance measures rural communities can use to target their
investments; and 12 case studies of rural communities using federal
resources to achieve their development and economic goals. It also
outlines steps the Partnership for Sustainable Communities is pursuing
to support small towns and rural places.
To read the report, please visit this website.
Jamie Baker Roskie
Thursday, November 17, 2011
UGA Land Use Clinic alumnae Sarah Schinder (now Professor Schindler, Maine) must still follow Athens news pretty closely, because she is the first to alert me of a controversial new plan for Wal-Mart to anchor a big new mixed-use development in downtown Athens. From our local paper:
An Atlanta developer is planning a major retail and residential development on the fringe of downtown Athens, two Athens-Clarke officials said Wednesday.
Selig Enterprises is planning to build 200,000 square feet of commercial space between East Broad and Oconee streets, “including a 90,000- to 95,000-square-foot big-box, most likely to be a Walmart,” Commissioner Kelly Girtz said.
Actually, rumors of this plan have been floating around for awhile. Some folks are frustrated because this development supplants a more ambitious and community-driven plan to create a river district. The development will also displace local coffee favorite Jittery Joe's Roasting Company, but will mostly be placed on a vacant parcel once occupied by a building supply company. It may also bring a grocery store to downtown Athens, which some residents would welcome. The site is only blocks from where Occupy Athens is currently camped - I wonder if we'll see any cross-protesting?
Jamie Baker Roskie
Wednesday, November 16, 2011
Frank Alexander (Emory) and Leslie Powell have posted Neighborhood Stabilization Strategies for Vacant and Abandoned Properties, 34-8 Zoning and Planning Law Report 1 (2011). Here's the abstract:
Vacant and abandoned properties are a growing inventory in many American neighborhoods as a result of unusually high foreclosure numbers, population loss, and property value declines. The impact of vacant and abandoned properties is tangible and requires a willingness by local governments to acknowledge and address the problem. This article outlines the problems caused by vacant and abandoned properties and suggests a variety of potential strategies, from property tax foreclosure reform to land banking.
Frank has co-founded along with Dan Kildee the Center for Community Progress (f/k/a The National Vacant Properties Campaign). His scholarly and consulting work with affordable housing, title-clearing and land bank present a model of engaged scholarship that should inspire all law teachers as Frank himself does for those who have the pleasure to meet him.
From Patricia Salkin, an opportunity to contribute to the Zoning and Planning Law Report:
Looking for manuscripts: Patricia Salkin is looking for manuscripts for the 2012 Zoning and Planning Law Report. This is a monthly practitioner-oriented newsletter published by Thomson-Reuters. Each issue features a substantive article on a land use law topic of interest to zoning and land use lawyers. Manuscripts should be 18-20 double spaced pages, national in scope and offer practical perspectives/advice to practitioners. This is a great opportunity to retool a law review article for a different audience or to use a piece for this publication as a building block to a future law review article. If you are interested in submitting a manscript or vetting an idea, please contact Salkin at [email protected]
As she notes, it's a great opportunity to take an academic article and rework it into a more accessible piece to reach a broader audience.
Tuesday, November 15, 2011
Patricia Salkin sends the following announcement that should be of interest to anyone who has published in the field this year:
Albany Law School Associate Dean Patricia Salkin is once again preparing for the annual Zoning and Planning Law Handbook. This publication highlights 18 law review articles published in 2011 that would be of significant interest to land use practitioners. The bibliography she has put together of articles lists about 140 publications so far. If you would like to have one or more of your articles considered for publication, please send the article name and citation to Patty Salkin at [email protected] to make sure it is included in the bibliography and considered for publication.
Land use is an especially great field because of the interaction and synergy between the academics and the professionals--the Handbook is a terrific opportunity to publish to a wider audience.
Monday, November 14, 2011
Nestor M. Davidson (Fordham) has posted Property's Morale, 110 Michigan Law Review 437 (2011). The abstract:
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs.
Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join a community, and make other decisions at property’s core. More precisely, demoralization is predicated on a kind of paralysis flowing from anxieties about instability, unfair singling out, and majoritarian expropriation that can be sparked in legal transitions.
This prevailing psychological portrait of expectations has considerable intuitive appeal and is widely influential. It is, however, distinctly incomplete. This Article offers an alternative picture of the expectations with which people approach property and the corresponding anxieties that might cause people to hesitate. From this perspective, stability is less important than assurances that the legal system will respond when external forces threaten to overwhelm the value owners create, that it will provide a fair process of adjustment over time, and that it will ensure inclusion.
In short, property law can offer morale benefits that are every bit as critical as demoralization costs. Property theory and doctrine often juxtapose ex ante certainty against ex post flexibility; however, a morale lens underscores that legal transitions can signal responsiveness as easily as instability. Doctrinally, this understanding recalibrates property law’s approach to expectation. Normatively, property’s largely ignored, but absolutely vital, morale function provides a framework for understanding how the legal system can buoy confidence in greater balance, fostering all of the work with which property is so rightly associated.
Daniel I. Halperin (Harvard) has posted Incentives for Conservation Easements: The Charitable Deduction or a Better Way, Law & Contemporary Problems, Vol. 74, p. 29, Fall 2011. The abstract:
Therefore, to give greater assurance that the public benefit of the gift will be consistent with the claimed deduction, the donee should be required to certify that it has selected the easement consistent with its mission and it has both the resources to manage and enforce the restriction and a commitment to do so. Moreover, it is inappropriate to measure the charitable deduction by the supposed loss in value to the donor from the imposition of the easement. The focus should be on actual benefit to charity. Therefore, eligibility for a charitable deduction for a conservation easement should be contingent on certification – by a public agency or, possibly, an IRS-accredited land trust – that the public benefit from the contribution is equivalent to the claimed deduction.
In fact, the recent changes to various tax-expenditure programs – placing caps on the expenditures and requiring the participation of expert agencies – indicates that Congress is less enamored than it once was with open-ended tax expenditures administered solely by the Treasury Department. This suggests a cap on tax credits for the contribution of conservation easements. Even if the program is open-ended, Congress should mandate participation of an expert agency such as the Bureau of Land Management, which is more capable of evaluating the public value of an easement.
This article from the L.A. Times discusses recent changes to California's stringent environmental review statute (CEQA) that permit the governor to "fast-track" certain development projects through the review process. The merits of CEQA are certainly subject to debate, with business and development groups claiming the law is a job-killer and environmental groups crediting it with preserving important natural resources. I have not read enough to opine on the merits of CEQA, but if there's one thing I do know it's that giving elected officials discretionary authority to decide what gets fast-tracked and what does not is a recipe for trouble. As the article notes ominously, there are already complaints that only politically-connected parties are qualifying for special treatment.
Stewart Sterk (Cardozo) and Kimberly Brunelle have posted Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases, 63 Fla. L. Rev 1139 (2011). Here's the abstract:
Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.
The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision.
Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute.
If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints.
In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate.
This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues.