Saturday, February 19, 2011

Land Use and Labor Law

While my family members continue to occupy the state capitol in Madison along with thousands of others seeking to protect workers' rights in Wisconsin, I have been avidly reading all the news coverage.

Rick Hills at PrawfsBlag has an interesting take on the situation that might appeal to us Land Use-y types. He likens the governor's proposal to prohibit collective bargaining rights to Nollan/Dolan's limitation on exactions, arguing neither one will really get carried out in realty. Not sure I agree (and some commenters clearly do not), but I thank Rick for introducing me to a way to understand the situation through a land use lens.

- Jessica Owley

February 19, 2011 | Permalink | Comments (2) | TrackBack (0)

Landowners Ignorant About Encumberances on Their Land

It is perhaps not surprising to many of us that landowners don't understand the encumberances on their land. If someone has never heard the term "conservation easement" before, it's not surprising that they don't understand what it means when they see it with their deed. One would hope, however, that you would find out before buying the property.

An article in yesterday's Washington Post gives examples of landowners who are uninformed about the nature of the restrictions on their land. Although the Post writer doesn't place blame, the official at the County Planning Office quoted in the article is not hesitant about pointing the finger at real estate agents.

Although this article doesn't present heartening news for the land conservation community, I was glad to see this in print. I have been hearing stories like this from landowners for a few years now (folks who just didn't realize there were encumberances on their land). While our land recording systems appear to ensure landowners will get notice of the restrictions on their land, we see that it doesn't always happen. This article highlights that such notice may not be meaningful if purchasers don't understand the deeds they are reading.

Not sure what the answer is to concerns like this. Fewer deed restrictions perhaps, but that is not very satisfying. We could require real estate agents to clearly explain all the provisions in a deed, but it doesn't look like it would have helped here. The couple that the story focuses on read and signed the conservation easement indicating that they had reviewed it. Looks like this couple may turn to the courts for relief. Hope their lawyer is better than their real estate agent.

UPDATE ON 02/21:

The Washington Post has added (or maybe it was there all along but I didn't see it) a great graphic showing where the conserevation easement was. This case has sparked an interesting debate in the land conservation community about the appropriateness of protecting backyards in this way.


- Jessica Owley

February 19, 2011 in Conservation Easements, Land Trust, Planning, Real Estate Transactions, Servitudes | Permalink | Comments (0) | TrackBack (0)

Toomer's Corners Trees Poisoned

I've just begun following the story of the poisoning of the trees at Toomer's Corner in Auburn, Alabama.  For those of you who do not follow American college football, this story needs some background.  (And some full disclosure - my husband received his architecture degree from Auburn.) 

Auburn recently won the national championship. To celebrate any football victory the fans collect at Toomer's Corner.  (Toomer's is the drug store that is caddy corner to campus at that intersection.) Somewhat quaintly they still engage in the tradition of "rolling" Toomer's Corner - that is, wrapping toilet paper around the trees. 

Now comes the dastardly poisoning. Football rivalries, especially in the South, run incredibly deep.  Many Alabamans decide whether they are "for" Auburn, or for University of Alabama, at a very young age.  So, for one Alabama fan, Auburn winning the national championship caused emotion to overtake reason.  This fan took some herbicide and poisoned the trees.  The dose was probably fatal, but Auburn's groundskeeping crew is doing their best to save them.  The man who allegedly poisoned the trees has been arrested and charges, and Auburn fans are rallying today in sympathy for the trees.

Jamie Baker Roskie

February 19, 2011 | Permalink | Comments (3) | TrackBack (0)

Friday, February 18, 2011

Land Trust Sued Over Conservation Easement Enforcement (or lack thereof)

Those of us who study conservation easements don't have a wealth of case law to debate and scrutinize (query whether that is a bad or good thing). So perhaps it is understandable that we  get excitable when there is even a hint of litigation. According to a local newspaper, a couple in Pennsylvania has just sued a local land trust for failing to enforce a conservation easement. In this case, the landowner allegedly violated the conservation easement by clearing woodlands, building a stable, and keeping horses. The plaintiffs claim that the land trust has not adequately enforced the conservation easement.

There are several interesting issues here including two big ones:

(1) Who has standing to bring challenges regarding enforcement of a conservation easement? Here, the plaintiffs own adjoining land. Could the township intervene?

(2) what are a land trusts' enforcement obligations? Did create of the conservation easement create a charitable trust? Can they choose not to enforce a conservation easement? How much discretion do land trusts have in negotiating settlements or conservation easement amendments?

I'm sure the land trust community will be watching this one closely.

- Jessica Owley

February 18, 2011 in Caselaw, Conservation Easements, Land Trust | Permalink | Comments (0) | TrackBack (0)

Cities as portfolios

I have been very pleasantly distracted from posting this week as Robin Malloy has been visiting in Cardiff. On the way to sample the delights of Cardiff's pubs and restaurants Robin has had to listen to my rant nuanced discussion of city centre retail developments. Knowing how to get a reaction he tells me that Americans would love these commoditised downtowns and asked for a link to illustrate how to develop them.

So, Robin, here is a link to Land Securities 'retail portfolio' list including both the city centre of Bristol, where I live, and Cardiff, where I work. Especially after a few drinks the city centres are so extraordinarily similar in terms of street architecture, design and content that I have to remind myself to get the train home.

Maybe Americans really would love this. Certainly the city centres' value remains significant, currently the 19.4 million square feet of retail accommodation owned by one developer, Land Securities, is valued at £4.7 billion (over $7 billion). Maybe I just need a few extra drinks in those formulaic bars.

Antonia Layard

February 18, 2011 in Comparative Land Use, Development, Economic Development | Permalink | Comments (0) | TrackBack (0)

NPR on Desegregation's Dragging Pace

This morning NPR broadcast an interview with Brown sociologist John Logan regarding his research on the intractability of black-white residential segregation.  Logan documents the persistent unwillingness of Whites to move into stable neighborhoods in which African-Americans make up 40% or more of the area population.  The story notes that Whites are more likely to join a residential community in which they are in the minority if other Asian-Americans and/or Hispanics are also present in significant numbers.

Jim K.

February 18, 2011 in Housing, Race | Permalink | Comments (0) | TrackBack (0)

Callison on the LIHTC and Geographic Desegregation

Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010).  Here's the abstract:

This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.

Jim K.

February 18, 2011 in Affordable Housing, Development, Housing, HUD, Inclusionary Zoning, Land Trust, Landlord-Tenant, NIMBY, Planning, Race, Scholarship, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Ready for an "Aerotropolis"?

So what is an aerotropolis exactly? It’s a city that’s built around an airport, the bigger the better, with factories and/or traders, both depen-dent on air freight, close by, followed by a ring of malls and hotels, followed by a ring of residential neighborhoods. The airport isn’t an annoyance, located as far out of the way as possible, but the city’s heart, its raison d’être. The book prides itself on taking a contrarian view of the city, much like Joel Garreau’s Edge City (Anchor, 1991) or Robert Bruegmann’s MSprawl (The University of Chicago Press, 2005). Those two books made an economic case for and social defense of existing phenomena, arguing that circumstances widely viewed as bad were actually good. Aerotropolis attempts to do something more ambitious: to name and encourage an urban form that taps into and facilitates globalization. 

Personally, this concept sounds like something straight out a Dante-inspired level of hell.  To suggest that an aerotropolis might be a futuristic version of the great American port city misses on so many analogy levels that its hard to really take the idea serious.

But, alas, the authors got a book deal and appear to be flush with consulting gigs so maybe the market for crazy ideas remains a sellers one.

Read the entire article here.

Chad Emerson

February 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

Tax Breaks For Conservation Easements May Get Even Sweeter

As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring. 

The Rural Heritage Conservation Extension Act of 2011 would allow landowners to deduct up to 50% of the adjusted gross income for such donations (right now it is only a mere 30%).

- Jessica Owley

February 17, 2011 in Agriculture, Conservation Easements, Federal Government, Historic Preservation, Land Trust, Servitudes | Permalink | Comments (0) | TrackBack (0)

Kahn, Vaughn, & Zasloff on the Housing Market Effects of Discrete Land Use Regulations

Matthew E. Kahn (UCLA, Inst. of Environment; Economics; Public Policy), Ryan Vaughn (UCLA, Economics), and Jonathan Zasloff (UCLA, Law) have posted The Housing Market Effects of Discrete Land Use Regulations: Evidence from the California Coastal Boundary Zone, Journal of Housing Economics, Vol. 19, pp. 269-279, December 2010The abstract:

The California coast line borders most beautiful and expensive land in the entire world. The California Coastal Commission was created in 1976 to protect the coast line and to regulate land use within the coastal boundary zone. This well defined regulatory boundary offers a unique opportunity to study the consequences of land use regulation on nearby housing located in the same political jurisdiction. Using two different geocoded data sets, we document gentrification within the boundary and discuss possible explanations for these patterns.

Matt Festa

February 17, 2011 in Beaches, California, Coastal Regulation, Development, Environmental Law, Housing, Property, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

New Atlantic Yards Movie

Perhaps I am late to the game on this one, but I just saw the trailer for a documentary about the Atlantic Yards controversy. The movie, called Battle of Brooklyn, tells the story of Brooklyn's use of eminent domain to build a sports arena. I am a big fan of eminent domain (hmm.. not sure if that is the right way to put it), but will likely see this movie that appears to focus on the protesters.

The main protester that the film follows actually agreed to a $3 million settlement and moved out. I wonder if they include that tidbit.

- Jessica Owley


February 17, 2011 in Affordable Housing, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Environmental Justice, New York, Property Rights | Permalink | Comments (5) | TrackBack (0)

Wednesday, February 16, 2011

Garnett on Mixed Land-Use Urban Neighborhoods

Nicole Garnett (Notre Dame) has added to her extensive body of work on land use, order, and quality of life in America's cities (read her book Ordering the City) by posting The People Paradox on SSRN.  Here's the abstract:

American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

Jim K.

February 16, 2011 in Books, Community Design, Comprehensive Plans, Crime, Density, Form-Based Codes, Housing, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism, Zoning | Permalink | Comments (2) | TrackBack (0)

Lincoln Institute Report on Explosive Growth of Developing World's Largest Cities

The Lincoln Institute for Land Policy has made available its report, Making Room for a Planet of Cities.  The report predicts a rapid increase in the population of the developing world's largest cities in combination with a concurrent decrease in urban density.  As a result, "[t]he world’s urban population is expected to double in 43 years, while urban land cover will double in only 19 years. The urban population in developing countries is expected to double between 2000 and 2030 while the built-up area of their cities is expected to triple [during that same period]."  The Lincoln site also offers a companion Atlas of Urban Expansion.

Jim K.

February 16, 2011 in Comparative Land Use, Density, Development, Environmentalism, Sprawl, Urbanism | Permalink | Comments (0) | TrackBack (0)

Land Use Journals

We all know about SSRN ejournals and the Current Index of Legal Periodicals, but increasingly the research that interests me is coming out in peer reviewed social science and natural science journals. Here are a few of my favorite that I recommend adding to your RSS reader or asking your library to send your way. Are there any you would add?

  • Landscape and Urban Planning
  • Conservation Letters
  • Conservation Biology
  • Biological Conservation
  • City, Culture and Society
  • Political Geography
  • Journal of Environmental Management
  • JAPA (Journal of the American Planning Association)

- Jessica Owley

February 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Buffalo Bans Hydraulic Fracturing

The common council of Buffalo voted unanimously last week to ban all hydraulic fracturing in the city. Following in the footsteps of Pittsburgh, Buffalo is the second city to have such a ban. Notably, there haven't actually been any proposals to engage in fracking in either city but the hope to set the stage for other local governments.

Buffalo is also worried about the potential waste products (frack water or black water). Thus, the law also bans the the storage, transfer, treatment or disposal of natural gas exploration and production wastes.

This local law is likely to be a hot topic of discussion at our upcoming Hyrdro-Fracking Symposium.

The title of this post was going to be "No Fraking in Buffalo," but I was worried that all the BSG fans out there would think I was writing about something else.

- Jessica Owley

February 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Moore on Practicing Before a Board of Adjustment

One teaching objective that I have for the land use class is for the students to understand that a land use practice is not a typical litigation practice, and that most of the work gets done in negotiations or practice before administrative agencies and boards.  That's why I require the students to attend a planning commission or zoning board meeting.  Kathryn L. Moore (Kentucky) has posted a short, readable article offering some excellent practical advice for attorneys in this area: Practicing Before a Board of Adjustment: Seven Practical Tips, Bench & Bar, Vol. 57, p. 11, January 2011.  The abstract:

Boards of Adjustment are administrative agencies, not courts of law. Thus, practice before a Board of Adjustment differs from general litigation. This Article offers seven practical tips for a successful practice before a Board of Adjustment.

Matt Festa

February 16, 2011 in Local Government, Planning, Scholarship, Teaching, Zoning | Permalink | Comments (1) | TrackBack (0)

"Slow Development"...

Here's an interesting article discussing the burgeoning idea of "slow development" and how the new economic realities are refocusing how we build and develop:

Fresh from a Smart Growth conference in Charlotte, N.C., Windsor Councilwoman Debora Fudge tweeted this week that the new guiding principle is "slow development," given the current economy.

Fudge said the realization came from a two-hour talk given by architect Andres Duany, often described as the father of New Urbanism, which is synonymous with Smart Growth and its emphasis on designing walkable, dense, mixed-use neighborhoods.

"He said we were moving into a slow development phase, a new way of looking at development based on the new economy staying with us a long time," Fudge said. "We can't afford to optimize things anymore."


Fudge said "optimization" essentially represents many of the demands made on developers, especially the environmental "gold" or "platinum" certifications that denote cutting-edge practices.

"When you want people to build in your city center, you're asking them for higher density and affordable housing," she said. "You can't also demand platinum LEED (Leadership in Environmental and Energy Design). People will barely be able to afford to build."

Read the whole article to get more interesting insights into how "slow development" offers one of the few real strategies for rebalancing the currently unbalanced supply and demand in the American development market.

Chad Emerson


February 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 15, 2011

Gonzalez on Climate Change and Community-Based Food Production

Carmen Gonzalez (Seattle) has posted Climate Change, Food Security, and Agrobiodiversity: Toward a Just, Resilient, and Sustainable Food System.  Here's the abstract:

The global food production system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring at a time of rising global food insecurity. The United Nations Food and Agriculture Organization reports that 1.05 billion people currently suffer from chronic hunger – a figure that represents one sixth of humanity.

This article examines the underlying causes of the crises in the global food system, and recommends specific measures that might be adopted to address the distinct but related problems of food insecurity, loss of agrobiodiversity, and climate change. The article concludes that the root cause of the crises confronting the global food system is corporate domination of the food supply and the systemic destruction of local food systems that are healthy, ecologically sustainable, and socially just. The article argues that small-scale sustainable agriculture has the potential to address the interrelated climate, food, and agrobiodiversity crises, and suggests specific measures that the international community might take through law and regulation to promote sustainable agricultural production.

Jim K.

February 15, 2011 in Climate, Community Economic Development, Environmental Law, Environmentalism, Food, Sustainability | Permalink | Comments (0) | TrackBack (0)

Subdivision Ruins...

Acclaimed architect Steve Mouzon has been cataloging what he calls "Subdivision Ruins" throughout the country.  These are subdivisions and other developments that have essentially been abandoned despite extensive infrastructure and even partially constructed homes.  The actual amount of money invested in these developments before they were abandoned can often reach into the millions of dollars.

Here's a link to his latest images from an abandoned subdivision along Florida's Design Coast near Seaside and Rosemary Beach, Florida.  While the pictures give a sense of the problem, seeing them in person is even more astounding.

Chad Emerson

February 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, February 14, 2011

Atlantic Magazine on Skyscrapers as Sprawl Prevention

This month's Atlantic has an article on skyscrapers.  Here's the blurb:

Besides making cities more affordable and architecturally interesting, tall buildings are greener than sprawl, and they foster social capital and creativity. Yet some urban planners and preservationists seem to have a misplaced fear of heights that yields damaging restrictions on how tall a building can be. From New York to Paris to Mumbai, there’s a powerful case for building up, not out.

I'm only about halfway through - still working on the history bit - but the article promises to show "how skyscrapers can save the city."  So far it's an interesting read.

Jamie Baker Roskie

UPDATE: a skeptical response to this article appears on New Urban Network.


February 14, 2011 in Architecture, Development, Redevelopment, Sprawl | Permalink | Comments (0) | TrackBack (0)