Saturday, February 26, 2011

Urban Ag...

Here in Montgomery, Ala we've begun a strong move toward implementing an urban agriculture program with the soon to open Hampstead Institute Downtown Farm.

A myriad of regulatory issues seem to inhibit urban ag.  Fortunately, we had a strong municipal buy-in and SmartCode to help alleviate those hurdles.  A good thing because this is a noble cause.

Reclaiming abandoned brownfields and asphalt dead zones to produce sustenance.

Check out this website to learn more...

Chad Emerson.

February 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Weekend Break: Local Hero (1983)

As I get ready for Property's land-use finale this semester, I will be making room to show a scene from one of my favorite movies of all time, Bill Forsyth's Local Hero.  A mid-level oil executive (Peter Riegert) is dispatched by the company CEO (Burt Lancaster) to buy up an entire Scottish coastal village to make way for a vast North Sea petrochemical facility.  Almost to a person, the villagers welcome the opportunity to pull up stakes and sell. 

The scene that I will show involves the negotiations over relocating the elderly beachcomber, who is skeptical about releasing his legal claim in exchange for any of the most expensive tropical shorelines in the world.  Another scene offers a brief exchange relating to sustainable economic development.  Both go quickly to the heart of the difference between market and subjective valuations of land and the role the latter plays in sustaining community.  If nothing else, my prep will be an excuse to watch one of the funniest movies about modern village life around.

Jim K.

February 26, 2011 in Beaches, Community Economic Development, Development, Economic Development, Eminent Domain, Environmentalism, Oil & Gas, Property, Property Theory, Sustainability, Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, February 24, 2011

Meyer on Community Participation in Environmental Cleanup Decisions

The last installment in the Cityscape trilogy is Peter Meyer's Brownfields, Risk-Based Corrective Action, and Local Communities.  Here's the abstract: Free Download

This article addresses the problems facing communities that suffer both environmental risks from past contamination and depressed economic activity. In such settings, redevelopment of contaminated sites and the associated economic development may require compromised standards for environmental mitigation. This potential conflict is often resolved through risk-based corrective action on sites cleaned only for their prospective use. But partial cleanups can be shown to face inevitable failure at some future date. Thus, in such an approach, communities face risks that they need to understand and should be capable of accepting or rejecting. The article considers these risks and assesses four alternative land use control strategies for assuring community participation in making decisions about both the cleanup process today and the response to risks of failure in the future.

Jim K.

February 24, 2011 in Community Design, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

ALPS Follow-Up...

Following up on Jessica's recent ALPS post, who among us is staying in DC on Saturday evening?  I don't arrive until Saturday am but will be there until Sunday afternoon.  

It seems like a Saturday evening or Sunday morning Land Use Profs blog gathering might be in order....

Matt and others?

February 24, 2011 | Permalink | Comments (1) | TrackBack (0)


Mark Edwards over at the Property Prof blog is asking who is going to ALPS this year. For those of you unaware of this new acronym on the scene, ALPS is the Association of Law, Property and Society. Next week will be the second annual meeting of the organization, bringing property professors from all over the United States, across the pond, and even further afield. I went last year and as a first-year prof found it a great way to meet people in the field. I think it says a lot about the conference that most people who went last year seem to be attending again. From glancing at the program, it looks like there will be a strong showing by Land Use profs including most of the blogger here.

- Jessica Owley

February 24, 2011 in Conferences, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

How do you sell a town?

is not a question answered by this article in Newsweek magazine, but the article does provide an interesting perspective about the past, and future, of company owned towns.  Timber town Scotia, California is on the market, but at the same time Google and Facebook are providing extensive commercial services and housing to their employees.

Jamie Baker Roskie

February 24, 2011 in California, Development, History, Property | Permalink | Comments (0) | TrackBack (0)

Where does Redevelopment Fit in our Priorities?

Ethan Elkind has a great post over at Legal Planet about Redevelopment and Governor Jerry Brown's budget priorities.

We have quite a quandry in front of us as states deal with budget problems and many redevelopment agencies seem poorly run. What's a poor city to? Ethan offers some suggestions. Like the unions in Wisconsin, he is also admitting that we are going to have to give some ground and agree to budget cuts.

- Jessica Owley

February 24, 2011 in Density, Development, Politics, Redevelopment, State Government, Urbanism | Permalink | Comments (0) | TrackBack (0)

Purdy on American Natures: The Shape of Conflict in Environmental Law

Jedediah Purdy (Duke) has posted American Natures: The Shape of Conflict in Environmental Law.  The abstract:

There is a firestorm of political and cultural conflict around environmental issues, including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, ignoring the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, Providential Republicanism, treats nature as intended for productive human use, and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the Early Republic and persists in important aspects of private and public land-use law. The second conception, Progressive Management, arose in the later nineteenth century as part of a broader legal reform movement, and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, Romantic Epiphany, concentrates on the aesthetic and spiritual value of nature, and has defined both national parks policy and the creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, Ecological Interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, which humans are unavoidably part of, to our benefit and hazard. Because all these ideas persist today in environmental law and politics, they provide a map of our existing statutes and doctrines and the conflicts around those laws and emerging issues such as climate change.

Looks like an interesting and important historical perspective on contemporary environmental policy. 

Matt Festa

February 24, 2011 in Climate, Environmental Law, Environmentalism, History, Politics, Property Theory, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Garnett on Business Improvement Districts

Nicole Garnett (Notre Dame) has posted Governing? Gentrifying? Seceding? Real-Time Answers to Questions About Business Improvement Districts, 3 Drexel L. Rev. 35 (2010).  Here's the abstract:

Business improvement districts ("BIDs") have become a ubiquitous feature of the urban development toolkit. An important - perhaps the most important - instantiation of the trend in urban governance toward the devolution of local authority to new "sublocal," quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. Drawing upon case studies of Philadelphia’s BIDS, this symposium essay seeks to answer three questions about how BIDs actually work on the ground: First, whether BIDs are actually functioning as local governments rather than quasi-private providers of supplemental services; second, whether BIDs either generate an insider/outsider problem within urban neighborhoods; and, third, whether BIDs exacerbate the pre-existing inequalities between urban neighborhoods.

Jim K.

February 24, 2011 in Development, Downtown, Economic Development, Local Government, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Howland on The Private Market for Brownfield Properties

Like yesterday's featured article from Cityscape, Marie Howland's (U. Md.- Planning)The Private Market for Brownfield Properties also takes advantage of Baltimore's industrial heritage to track brownfield sales. Here's the abstract:

This study examines land sales over a 10-year period - 1990 to 2000 - in one southwest Baltimore industrial district - Carroll Camden - to determine the effect of land contamination on property sales and sales price. I tracked all sales, selling price, time on the market, and the presence of land contamination in the 5,580-acre area. The results indicate that after the mid-1990s, contaminated parcels sold on the private market, with price discounts that accounted for contamination and cleanup. Out of the 144 parcels sold over the 1990-to-2000 decade, positive and market-clearing prices were found for 45 parcels with either confirmed or historical-reasons-to-suspect contamination. Interviews with owners and brokers of parcels on the market for 2 years or more and analysis of the data indicate that the contaminated parcels that did not sell within the 2-year period (1) had above-market asking price; (2) were small and odd-shaped; (3) had inadequate road access for modern trucks; (4) had outdated water, sewer, and telecommunications connections; or (5) had incompatible surrounding land uses. Two policy implications result from these findings. First, if a city such as Baltimore wants to revitalize an industrial area - maintaining its industrial function and remediating contamination - government-subsidized cleanups may not be the most cost-effective policy. Rather, the city should (1) modernize the outdated infrastructure, including roads and fiber optic connections; (2) remove the outdated residential structures that sit in the midst of the industrial area and diminish the desirability of some land parcels for industrial use; (3) consolidate small and odd-shaped properties that are not conducive to modern manufacturing, warehousing, or other industrial uses; (4) ensure city services are efficiently provided, including trash cleanup and police and fire protection; and (5) improve access and egress for modern trucking. The evidence from the Baltimore study indicates that the private sector will discount land prices and assume cleanup responsibilities. The second policy implication is that the market is capable of brownfield cleanup in some locations.

Jim K.


February 24, 2011 in Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 23, 2011

Guignet and Alberini on Voluntary Cleanup and Brownfield Redevelopment

A recent issue of HUD's Cityscape journal contains several articles on land use and remediation of environmental contamination.  The first featured here is Voluntary Cleanup Programs and Redevelopment Potential: Lessons from Baltimore, Maryland by Dennis Guignet and Anna Alberini (both U. Md.--Ag. & Resource Econ.).  Here's the abstract:

In the United States, policy has increasingly shifted toward economic incentives and liability attenuation for promoting cleanup and redevelopment of contaminated sites, but little is known about the effectiveness of such policies. These policies include, among others, state Voluntary Cleanup Programs (VCPs), which were established in the United States in the 1990s and, to date, have been implemented in nearly every state. This article focuses on 116 Baltimore properties that were enrolled and participated in the Maryland VCP from its inception in 1997 to the end of 2006 and examines what type of properties tend to participate in these programs, how these properties compare with other eligible but nonparticipating sites, and what the redevelopment potential of VCP properties and implications is toward open-space conversion.

We find that most applicants (66 percent) actually requested a No Further Requirements Determination directly, rather than proposing cleanup. Nevertheless, the VCP led to the identification and environmental assessment of 1,175 acres of contaminated land in the city of Baltimore alone. In Baltimore, VCP properties tend to be industrial, located in areas zoned as industrial, and away from residential neighborhoods. In more recent years, larger properties have increasingly enrolled in the program. Most participating sites are reused as industrial or commercial properties. In contrast with Alberini (2007), these findings suggest that, in Baltimore, pressure for residential development has not driven VCP participation to date. Based on differences in zoning requirements, the VCP may reduce demand for potentially contaminating activities on pristine land by as much as 1,238 to 6,444 acres, in Baltimore alone.

Jim K. Free Download

February 23, 2011 in Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, HUD, Industrial Regulation, Nuisance, Redevelopment, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Application Period Opens for Smart Growth Awards

From Roberta White at EPA:

The U.S. Environmental Protection Agency (EPA) is pleased to announce
that the application period for the 10th annual National Award for Smart
Growth Achievement is now open . Through this award, EPA recognizes and
supports communities that have successfully used smart growth principles
to improve communities environmentally, socially, and economically. Open
to public- and private-sector entities, winners will be recognized at a
ceremony in Washington, DC, in December 2011.

To view the application and complete entry guidelines, please visit:

Overview of the Awards:
         · Entry deadline is April 6, 2011.

         · Applicants may be public- or private-sector entities, but all
             applications must include a public-sector partner. Applications
             for public-nonprofit activities are welcome but must be submitted
             by the public-sector participant.

          · Awards will be given for the following four categories:

                  Programs, Policies, and Regulations:  This category
                  recognizes regulatory and policy initiatives that
                  support the principles of smart growth. EPA is
                  particularly interested in actions that remove
                  barriers to or provide incentives for smart growth.
                  Smart Growth and Green Building:  This category
                  recognizes development that combines smart growth and
                  green building approaches as building design and
                  materials are integrated with land use and location
                  efficiency. Projects may be single or multiple

                  Civic Places:  This category recognizes projects in
                  the public realm that improve a community's sense of
                  place while adding environmental and economic
                  benefits. EPA is particularly interested in projects
                  that create well-designed and vibrant public spaces.
                  Rural Smart Growth:  This category recognizes
                  communities that preserve and encourage rural
                  economies and character. EPA is interested in thriving
                  rural areas that have used smart growth approaches to
                  encourage economic development and job creation,
                  improve transportation choices and housing options,
                  and support the economic viability of working lands.

          · An “Overall Excellence" winner will be chosen from the four
          categories by the review panels.

For additional information, please visit
or contact Ted Cochin  (, 202-566-2181.

Jamie Baker Roskie

February 23, 2011 in Smart Growth | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

SCOTUS decides CSX Transportation v. Alabama Dept. of Revenue

The U.S. Supreme Court has issued its opinion in the case CSX TRANSPORTATION, INC. v. ALABAMA DEPARTMENT OF REVENUE et al., No. 09-520.  The opinion deals with issues in state & local government law, tax, commerce, and transportation policy, and it may be of interest to folks interested in land use.  From the Syllabus:

Petitioner (CSX) is an interstate rail carrier that operates, and pays taxes, in Alabama. The State imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors--interstate motor and water carriers. CSX sued respondents, the Alabama Department of Revenue and its Commissioner (Alabama), claiming that this tax scheme discriminates against railroads in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or Act), which bars four forms of discriminatory taxation, 49 U. S. C. §11501(b). Three of the delineated prohibitions deal with property taxes, §§11501(b)(1)-(3), and the fourth is a catch-all provision that forbids a State to "[i]mpose another tax that discriminates against a rail carrier," §11501(b)(4). The District Court dismissed CSX's suit as not cognizable under the 4-R Act on the basis of this Court's decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, and the Eleventh Circuit affirmed.

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4).

I'm posting more from the Syllabus after the jump.  Here's the interesting voting lineup:

Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Matt Festa

Continue reading

February 22, 2011 in Caselaw, Property, State Government, Supreme Court, Transportation | Permalink | Comments (0) | TrackBack (0)

Virtual Speaker Series

One of the many exciting things I am engaged in this month is Mercer's Environmental Law Virtual Guest Speaker Series. Students at Mercer and elsewhere listen to recorded presentations on different topics by law professors across the country. Unsurprisingly, my presentation is about conservation easements. Starting Monday February 21, my lecture was available to the students. All week students are asking me questions in an online discussion format. This is a great project by Mercer, giving students access to law professors across the country with different specialties and creating a flexible learning environment that takes advantages of new technologies.  [I gave my presentation using powerpoint's new narration function which I found alternatively straightforward and infuriating.]

The discussion is a bit harder than answering questions after a talk because writing down answers in a public forum always requires a bit more thinking than the off-the-cuff answers we give when answering live questions immediately following a talk. BUT the format also lends itself to a higher caliber of questions. When students have the opportunity to think about a presentation and write questions at their leisure, the questions are intriguing and thoughtful. Almost every questions so far has pushed me more than I generally expect from students. Kudos to Mercer  and Steve Johnson for this annual program.

- Jessica Owley

February 22, 2011 in Conferences, Conservation Easements, Environmental Law, Land Trust, Property, Property Theory, Scholarship, Servitudes, Teaching | Permalink | Comments (0) | TrackBack (0)

The Struggle for Land--conference on early modern legal history

Speaking of interdisciplinarity, I received from H-Net this announcement of what looks like a fascinating conference about land use and legal history: The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas, to be held at the Newberry Library in Chicago on April 8, 2011.  From the announcement:

The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions. In what ways did “international competition” and the emergence of an “international law” (to use an anachronism) modify property and jurisdiction? How did economic, social, and political developments influence new ideas and experiences regarding the land? In what ways did these ideas and experiences shape practical strategies for claiming land and asserting rights to govern it and profit from it? We are particularly eager to know whether these encounters encouraged, consciously or not, borrowing between different European legal systems as well as between settlers and indigenous peoples. How was the movement and refashioning of legal knowledge bound up with the movement of peoples and refashioning of modes of control over land? We would like to encourage an interdisciplinary conversation among lawyers, historians, sociologists, geographers, and literary scholars.

Participating in the symposium will be a number of really promient historians, plus several law profs including Richard Ross (who appears to be the organizer, along with Tamar Herzog), Claire Priest, R.H. Helmholz, Stuart Banner, Christopher Tomlins, Daniel Hamilton, and Allison LaCroix.  More info, including the schedule, after the jump.

Matt Festa

Continue reading

February 22, 2011 in Chicago, Comparative Land Use, Conferences, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 21, 2011

The Scourge That is Robert Mugabe...

Long known (and deservedly so) as one of the most brutal dictators to ever live, Robert Mugabe, Zimbabwe's sociopathic scourge of a president, also has a strong land use connection.

In particular, Mugabe has implemented a crony-based land redistribution policy since taking power decades ago that, rather than seeking to convey property to the poor Zimbabweans that he claims are the focus, actually redistributes most of the land to the country's corrupt elite. 

I've used a discussion of his acts as the basis for an always interesting Property I discussion on land acquisition issues.

Now, there is a new tool that warrants watching if you are interested in these issues (or just a student of history and want to know more about the evil that is Robert Mugabe).  It's called "Mugabe and the White African"--a documentary that is raking up a host of awards.

I watched it this afternoon and found it extremely compelling, especially from a land use and redistribution perspective.

Chad Emerson

February 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 20, 2011

Interdisciplinary Interactions

February has been a busy but exciting month for me. I have agreed to a few speaking engagement and have found all of them to be worthwhile and stimulating. I spoke about my research on the Enforceability of Exacted Conservation Easements at the Albany Junior Scholar Workshop (and will be speaking on it again at the upcoming ALPS Annual Meeting). I also presented my research on Tribal Conservation Easements at the Buffalo Junior Faculty Forum (and will be speaking at it again at the upcoming Tribes, Land, and the Environment Conference at American University). I wrote earlier about how helpful I find junior faculty events and have really benefited from my colleagues at Buffalo at elsewhere who took the time to give me feedback on my work.

In the midst of these legal speaking events, I also spent a Friday afternoon presenting my research to Buffalo's Geography Department at their weekly colloquium. It's wonderful to be part of a big university where opportunities to speak and work with colleagues in other departments abound. Land Use and Environmental Law present multiple avenues for intersections and interactions.  The Geography Department faculty and graduate students asked me questions that law profs never would have come up with. My TA from the Geography Department is helping me map conservation easements in a GIS database. While I appreciate the feedback from law professors, the benefits of speaking to a broader crowd are plentiful. Next stop -- Urban and Regional Planning

- Jessica Owley

February 20, 2011 in Conferences, Conservation Easements, Scholarship | Permalink | Comments (0) | TrackBack (0)