February 12, 2011
This weekend, NPR aired two interesting stories that Land Use types like us might find interesting.
The first is a story about the new book "Triumph of the Cities" which argues that urban centers are actually much more sustainable than many people give them credit for.
The second discusses the renewed interest in streetcars and trolleys in cities throughout the country.
Eagle on Urban Revitalization, Eminent Domain, and Jane Jacobs
Steven J. Eagle (George Mason) has posted Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, forthcoming in the Albany Government Law Review. The abstract:
This article reviews the implications for land use policy of Jane Jacobs’ The Death and Life of Great American Cities. Fifty years after its publication in 1961, Death and Life remains a clarion call for resistance to monolithic development and to the reigning paradigm of urban planning in the mid-20th century. The article asserts, however, that government officials and planners have learned the wrong lesson from Jacobs. Their emphasis on the top-down imposition of what purports to be varied development is evident in the growth of condemnation for retransfer for private economic redevelopment. Such policies are directly contrary to Jacobs’ insistence on bottom-up organic development.
The article further describes the muddled state of the U.S. Constitution’s Public Use Clause, evident in Kelo v. City of New London and in state cases such as Goldstein v. New York State Urban Development Corporation. It asserts that judicial unwillingness to provide meaningful scrutiny to condemnation for private redevelopment is based, in part, on acceptance of the revisionist, and incorrect, reading of Jacobs’ work.
Merrill and Smith on Coasean Property
Thomas W. Merrill (Northwestern) and Henry E. Smith (Yale) have posted Making Coasean Property More Coasean, forthcoming in the Journal of Law and Economics. The abstract:
In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. This picture is not only not essential to what Coase was trying to do, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to what we term the Coase Corollary: in a world of zero transaction costs the nature of property does not matter to allocative efficiency. But as with the Coase Theorem itself, the real point is the implication for a positive transaction cost world: we need to subject the notion of property to a comparative institutional analysis. Because transaction costs are positive, it is no accident that property is defined in terms of things as a starting point, that uses are grouped under exclusion rights, and that in rem rights are widely employed: these features of property receive a transaction cost explanation. Simple lumpy packages of property rights motivated by transaction costs form an important baseline that furnishes presumptive answers to bilateral use conflicts. A more thoroughly Coasean approach points back to a picture of property more like the traditional one furnished by the law.
So, in sum: Merrill & Smith on Coase on property rights. What else do you need to know?
February 11, 2011
Fort on Laches and Indian Land Claims
Kate Fort (Michigan State) has posted Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, 11 Wyo. L. Rev. ____ (forthcoming 2011). Here's the abstract:
That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.
The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.
February 10, 2011
Mixed Use Funding...
For a long time, one of the biggest hurdles to building a mixed-use project were zoning codes that segregated uses by type and, generally, did not allow the mixture of compatible uses.
To a large degree, even cities with Euclidean-focused codes have begun to allow these mixed-use developments. Thus, the regulatory challenge has been mitigated to a degree.
However, another challenge remains: financing mixed-use projects. With Fannie and Freddie essentially funding so many projects these days (through their purchases of MBS-type instruments), these two housing giants really drive housing policy.
That's why this proposed change to allow a greater mix of compatible uses within a single project would be a key policy change by Fannie and Freddie that would further enable this sustainable form of development:
The Congress for the New Urbanism and the National Association of Home Builders are calling for politicians to spur policy change for government-sponsored entities Fannie Mae and Freddie Mac. The groups want both organizations to be able to purchase mortgages for mixed-use projects with greater amounts of commercial square footage. Local professionals believe the policy change would open doors for more projects.
Fannie Mae and Freddie Mac, which purchase residential mortgages from loan originators, are restricted. Fannie Mae can’t purchase the mortgage of any mixed-use project where commercial space totals more than 20 percent of the overall square footage. Freddie Mac’s limit for commercial space is 25 percent.
“These rules are hurting the progress of sustainable urban development across the country,” said John Norquist, president and CEO of the Congress for the New Urbanism, a Chicago-based nonprofit committed to smart planning and growth. “It’s leading developers away from the concept of housing above commercial space in urban environments and towards suburban sprawl.”
The Congress for New Urbanism is calling for both Fannie Mae and Freddie Mac to either increase the maximum square footage of commercial space to 50 percent of the overall project, or remove the limits entirely. The National Association of Home Builders is asking for the maximum to be increased to 45 percent.
Read the entire article, here.
Billions for High Speed Rail
Vice President Biden made an announcement Tuesday that's grabbing headlines - $53 billion in the Administration's proposed budget for high speed rail. From an article on CNN.com:
The proposed new investment -- including $8 billion in the upcoming fiscal year -- would accompany a streamlined application process for cities, states, and private companies seeking federal grants and loans to develop railway capacity.
"There are key places where we cannot afford to sacrifice as a nation -- one of which is infrastructure," Biden said in a written statement. There is a pressing need "to invest in a modern rail system that will help connect communities, reduce congestion and create quality, skilled manufacturing jobs that cannot be outsourced."
It might be, though, that none of that money ends up in Georgia. Georgia has a history of being hostile or apathetic to proposals for high speed rail, something that Transportation Secretary Ray LaHood made a point of when he visited the state last year.
I think it's a shame Georgia's leadership isn't more progressive about rail. I loved the ease and convenience of riding the train to Philly when I lived in DC (much better than being grounded on a plane by thunderstorms in the summer, or driving the insanity that is I-95 in the Northeast corridor). Rail between Athens and Atlanta, and Atlanta and Chattanooga, make a ton of sense. But then, nobody's really asking me...
Jamie Baker Roskie
February 9, 2011
Ed McMahon (no, not that one) weighs in...
...on factors that are driving a change in retail construction:
For more than 50 years retailers have favored the commercial strip: a linear pattern of retail businesses strung along major roadways characterized by massive parking lots, big signs, box-like buildings and a total dependence on automobiles for access and circulation.
For years planners have tried to contain and improve the strip. Now they are getting help from consumers and the marketplace. The era of strip development is coming to an end. Evolving consumer behavior, changing demographics, high priced gasoline, internet shopping — are all pointing to a new paradigm for commercial development.
Commercial strips are not going to disappear overnight. But it is becoming increasingly clear that strip retail is retail for the last century. The future belongs to town centers, main streets and mixed use development.
McMahon, a well-respected commentator on development issues, goes on to describe several interesting reasons why this change is happening and is unlikely to be reversed.
Read the entire article, here.
Public Funding for Religious Landmark Upheld
U.S. District Judge Michael McCuskey (C.D. Ill.) has dismissed (Jurist story here) an Establishment Clause lawsuit challenging the constitutionality of the Illinois Commerce and Economic Opportunity Department's awarding of a restoration grant for the Bald Knob Cross of Peace (history webpage). The plaintiff has declared his intention to appeal to the Seventh Circuit.
Super Land Use Bowl
In class, we started off the week with a quick session of Current Events in Land Use (aka, what-can't-Festa-turn-into-a-land-use-issue). The topic? Super Bowl. The students were prepared. Here's what they came up with:
The weather. Of course that was on everyone's mind last week all around the country, with blizzards in the northeast and midwest, and even a snow day in Texas. But Dallas had it particularly rough, affecting travel both to and around the DFW metroplex. When the Super Bowl is held in New Jersey in 2014, the weather may be worse, but I predict that it won't cause as many problems as it did in Dallas because it isn't (usually) rational for a city like Dallas to make the local government investments in snowplows, employees, and materials (salt) that will be on hand in NJ.
The parties. The worst weather was earlier in the week, so not that big a deal, right? I didn't realize this until the big game came to Houston in 2004, but the Super Bowl brings a full 1-2 weeks of celebrities, money, and parties--everything from huge VIP bashes to public street parties. Unlike any other sports event that I know of. And these things take lots of permits, approvals, resources, and land use coordination with local governments. I even have it on good authority from a DFW land use prof that there were private helicopter services to take people from party to party. I remember my very first assignment as an associate was to research the Houston sign code for a client who wanted to do a lot of temporary advertising during the Super Bowl festivities. Probably lots of SOB issues too.
The stadium issue. I'm sure you've all heard about controversies over sports teams' demanding new facilities, and the debate over whether the projects prove as economically beneficial as promised. The nearby baseball Ballpark at Arlington was built in the early 1990s using public funding and eminent domain (under the supervision of then-owner George W. Bush). Apparently the same tactics were used for the recently-built (just in time for the team to not play in the Super Bowl!) Cowboys Stadium. Another land use issue is the location--out in the suburbs. One student told me that team owner Jerry Jones tried to get it built close to downtown, but for issues of either land assembly or zoning and permitting (or maybe tax issues too), it couldn't get done.
I'll add one more: the team names. I take no side in the Clowney-Edwards debate at Property Prof Blog (though I did see a "Cheesheads for Obama" pin at the junior scholars conference in Albany). But I like the fact that these two team names say something about their cities' histories, and of course, land uses: Pittsburgh is obviously a steel town, and Green Bay's team is named after its meat-packing industry.
So that was in land use class. In my Property I classes, I simply noted that at the end of last week I predicted that the final score would be Packers 31, Steelers 24; and that the actual score was Packers 31, Steelers 25. So there!
'A classic example of state-sponsored, de-greening gentrification'
This is the characterisation of a development project in central London, near the Elephant & Castle, where social housing is being demolished in the name of regeneration, to be replaced by privately owned accomodation with 25% protected as 'affordable'. The project was initiated by the Liberal Democrat majority on Southwark Council and is now being implemented by the currently Labour controlled council. (Both are parties that have conventionally been understood as being on the left of British politics).
These projects are public-private collaborations, at their simplest, the public authority applies for the permissions (particularly for compulsory purchase of the existing properties) while the developer (here (essentially) the Australian-based Lend Lease) provides the cash. There are clear analogies with the approach upheld in Kelo (although here there is no outrage on legal grounds) and there is little doubt that this development will be built. The 'decanting' of existing socially housed residents is already underway, either by buying them out or by re-housing council tenants 'nearby'.
One reason given for the regeneration is aesthetic, with proponents arguing that brutalist architecture brutalises people. There is certainly wide agreement that Heygate is not an objectively attractive development. Yet residents emphasise the extent of community spirit on the estate.
A further justification for redevelopment has been that this prime piece of real estate provided relatively spacious accommodation with significant green space, which should be developed more intensively with the majority available for private ownership. Indeed, the specification for the re-build is such that the project was selected as one of Bill Clinton's 17 'climate positive' neighbourhood developments.
So it will be a 'climate positive' example of 'state-sponsored, de-greening gentrification'.
February 8, 2011
Surprising Housing Statistic...
USA Today is reporting that, if I'm reading this chart correctly, over 70% of the homes in Clark County, Nevada (Las Vegas) are underwater--that is, they owe more on the mortgage than the value of the home.
If that's the case, then the impact of the continuing high employment in the area is likely to result in more walkaways. In turn, the downhill result of this is most likely less property tax receipts, more vacancies, and a continued lack of new construction (because supply outstrips demand).
This could lead to some very interesting land use trends in the Las Vegas area--namely, what do you do with a large inventory of vacant houses--many of which could be voluntary walkaways because of the underwater nature of the house.
Recent Article Highlights Need to Think Comprehensively About Land Conservation
A new article in the journal Conservation Biology, highlights the need to shift our way of thinking about preservation sites. As I (and many others) have noted elsewhere, climatic changes are likely to disrupt current land protection schemes. Many of our current land conservation strategies (including establishment of reserves and most uses of conservation easements) assume environmental stability. This assumption if inappropriate when studies increasingly demonstrate there will be large shifts in ecosystems and species habitat. The authors of Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change demonstrate that there is a need to increase the resilience and robustness of our conservation areas and reassess our decisions regarding where protected lands should be and what the rules governing those areas should be. Although the study examines birds in sub-Saharan Africa, the ideas and cautions easily apply to decisions regarding land conservation in the United States and elsewhere.
Below is the authors’ abstract:
Networks of sites of high importance for conservation of biological diversity are a cornerstone of current conservation strategies but are fixed in space and time. As climate change progresses, substantial shifts in species’ ranges may transform the ecological community that can be supported at a given site. Thus, some species in an existing network may not be protected in the future or may be protected only if they can move to sites that in future provide suitable conditions. We developed an approach to determine appropriate climate change adaptation strategies for individual sites within a network that was based on projections of future changes in the relative proportions of emigrants (species for which a site becomes climatically unsuitable), colonists (species for which a site becomes climatically suitable), and persistent species (species able to remain within a site despite the climatic change). Our approach also identifies key regions where additions to a network could enhance its future effectiveness. Using the sub-Saharan African Important Bird Area (IBA) network as a case study, we found that appropriate conservation strategies for individual sites varied widely across sub-Saharan Africa, and key regions where new sites could help increase network robustness varied in space and time. Although these results highlight the potential difficulties within any planning framework that seeks to address climate-change adaptation needs, they demonstrate that such planning frameworks are necessary, if current conservation strategies are to be adapted effectively, and feasible, if applied judiciously.
HOLE, D. G., HUNTLEY, B., ARINAITWE, J., BUTCHART, S. H. M., COLLINGHAM, Y. C., FISHPOOL, L. D. C., PAIN, D. J. and WILLIS, S. G. , Toward a Management Framework for Networks of Protected Areas in the Face of Climate Change. Conservation Biology, no. doi: 10.1111/j.1523-1739.2010.01633.x
- Jessica Owley
Junior Scholars II
Jessica is absolutely right about the Northeast Regional Scholarship and Teaching Development Workshop this past weekend. Keith Hirokawa (Albany) did a fantastic job of organizing this (and he also happens to be a land use prof). And in addition to Jessica--who really is a land use prof--there was a nice group of junior land users, including a couple of us all the way from Texas. We hope to be hearing from some of the others on the blog! Basically, if Keith can get a bunch of people to travel to Albany in February (see the snow piled in front of the 1928 building), it must have been a good thing.
I think maybe the key thing that this conference provided was a forum for junior law professors to meet each other and discuss both scholarship and professional development. We all have our own institutional colleagues from whom to get advice and mentorship, but sometimes it is really helpful to meet other junior profs who are in relatively similar circumstances at other schools. And when it comes to sharing ideas on our scholarly works-in-progress, there's just no substitute for face-to-face interaction.
This workshop did a particularly great job in both giving everyone a chance to present their work, but also for mixing in teaching and professional development sessions. It's up to us to take the initiative like Keith did to make these events possible.
February 7, 2011
I just returned from the 2011 Northeast Regional Scholarship and Teaching Development Workshop at Albany Law School. This was a great event for junior scholars with a strong showing by land use and environmental law faculty. There were papers on exactions, big box retail (I learned the term "ghost boxes"), conservation easements, federal land use, and other fascinating topics. The presence of so many junior scholars in our field was exciting and invigorating. It gives me faith that there will be many exciting works and conferences to come.
As this was a junior scholar conference, it presented a safe space where we untenured masses could exchange work with minimal fear of embarrassment. What I would love to see next is a way for junior scholars to connect with senior scholars in the field to get feedback on early work. Any thoughts or suggestions?
We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!
- Jessica Owley
Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy
March 28-29, 2011 at University at Buffalo School of Law
Buffalo, New York
On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.
Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.
We welcome submissions on any related topic, including the following:
- Hydrofracking and Nuisance Law
- Impacts on Tribal Lands
- Administrative law and the EPA Rulemakings
- Environmental Review Processes
- Application of federal environmental laws, including the Clean Water Act and Clean Air Act
- Energy issues, in including the Energy Policy Act and DOE policy
- Endocrine Disruption and Human Health Impacts
Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to firstname.lastname@example.org.
For more information, contact Jessica Owley [email@example.com or 716-645-8182] or Kim Diana Connolly [firstname.lastname@example.org or 716-645-2092]
February 7, 2011 in Clean Energy, Climate, Conferences, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Local Government, New York, NIMBY, Nuisance, Oil & Gas, Planning, Politics, Property, Property Rights, Scholarship, State Government, Sustainability, Water | Permalink | Comments (3) | TrackBack
Eminent Domain Song
I am neither endorsing the musicality of this video nor its message but I just can't resist sharing land-use-inspired music.
- Jessica Owley
February 6, 2011
Balancing Wind Issues...
I remember driving by a huge wind turbine during a recent vacation and thinking to myself "Wow, that thing really looks huge!"
That's the reason--their large size which can interfere with good views--that wind power can get mixed up in land use disputes.
These aesthetic concerns certainly have value and warrant careful consideration. At the same time, those concerns should be balanced by this very practical result from the big recent snow storm in Texas (as is typical, even with snow storms, everything the Lonestar state does has to be big, right Matt):
TT: Were there problems with wind-power plants needing to be shut down for high winds or icing blades, and also did nuclear plants have any problems?
Doggett: I'm not aware of any nuclear plant problems, and I'm not aware of any specific issues with wind turbines having to shut down due to icing. I would highlight that we put out a special word of thanks to the wind community because they did contribute significantly through this time frame. Wind was blowing, and we had often 3,500 megawatts of wind generation during that morning peak, which certainly helped us in this situation.
You can find the entire interview with the CEO over Texas' power grid, here.
Not expressing an opinion on the content...just a slight nod to Mr. Stewart for giving us a break from it all.