March 5, 2011
Before Mountain Top Removal . . . Historic Designation Removal
NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men. Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site. After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within.
March 5, 2011 in Clean Energy, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Historic Preservation, History, Industrial Regulation, Oil & Gas, State Government | Permalink | Comments (0) | TrackBack
March 4, 2011
Smart Growth in Iowa Survives (for now)
When I first moved to Des Moines, I was pleased to read about a new and progressive Smart Growth law passed by the legislature (begins at Section 17 in the link). The law provided for a host of Smart Growth related requirements, including charging a new Smart Planning Task Force with the responsibility of "recommending policies and strategies for creating a stronger planning culture in Iowa [and] producing more resilient and sustainable communities." The Task Force's final report was issued in November 2010. The final report, among other things, included a provision requiring local governments to submit Smart Growth regional plans to a regional and then state body for approval.
Shortly after the elections, Iowa's Smart Growth law was on the chopping block in HF 45, which passed the House. An amendment to remove the amendment did not pass the House. Fortunately, yesterday, the Speaker and President (of the Senate) signed HF 45 without the repeal language in it and sent it to the Governor.
I'm not suggesting that Smart Growth is a magic pill, but the considerations that are required for Smart Growth plans under the Task Force's report include important government functions such as, collaboration, transparency, renewable energy, occupational and housing diversity, natural resource protection, sustainable design, and transportation diversity.
March 3, 2011
Cool New Tool...
If you like webtools that shed light on different land use issues and trends, then the Atlas of Urban Expansion looks to be a good one:
The Atlas of Urban Expansion provides the geographic and quantitative dimensions of urban expansion and its key attributes in cities the world over. The data and images are available for free downloading, for scholars, public officials, planners, those engaged in international development, and concerned citizens. The global empirical evidence presented here is critical for an intelligent discussion of plans and policies to manage urban expansion everywhere.
Check it out at the Lincoln Institute's website.
Speaking of the suburbs, I just got this report from Houston Tomorrow (via Planetizen) by the Sustainable Cities Collective about what sounds like a very interesting conference on "The Sustainable Suburb: Reimagining the Inner Ring" at North Carolina State. From the article:
[T]hough they once symbolized growing American modernity in the post-war period, many suburbs now suffer from the same sort of decay that has been attacking inner cities for decades.
If there’s a lesson from this, it is that the old lines drawn between city and suburb may no longer apply so neatly.
It was appropriate, then, that North Carolina State University’s 2011 Urban Design Conference, held earlier this month, focused on the “Sustainable Suburb.” Though held in a Downtown Raleigh convention hall, the meeting was enlightening in its exploration of the ways suburbs can evolve to adapt to their new realities.
Most interesting was Ellen Dunham-Jones, whose Retrofitting Suburbia (with June Williamson) has become a frequently cited handbook for people looking for ways to reconfigure their environments for a new century. The book shows how strip shopping centers can be morphed into churches and how office parks can be densified.
Sounds fascinating; check out the conference reports as well as Dunham-Jones' Retrofitting Suburbia.
March 2, 2011
This recent Washington Post column makes the argument that the Great American Suburb is really misunderstood (or at least mis-defined):
But today, the suburbs aren't what they used to be. Since more than 50 percent of Americans live in them, suburbs have become more like cities, while cities have become more like suburbs, complete with gated communities and big-box stores. For better or worse, the suburbs reflect America, so let's dispense with a few misunderstandings about where most of us call home.
Myth #3 is an especially accurate one:
3. Suburbs are a product of the free market.
Suburbs are a big government handout if there ever was one. Taxpayers are on the hook for the new roads, water and sewer lines, schools, parks, and police and fire services that make it possible for "self-made" suburbanites to live on the outskirts of town.
And building suburbs is expensive. A 2008 study by Arthur C. Nelson, a professor of city and metropolitan planning at the University of Utah, estimated that it costs as much as $13,426 per resident when a new suburban development is built. In sprawl-plagued Atlanta, property tax rates rose 22 percent from the mid-1980s to the mid-1990s as suburban development boomed. But during that same period in Portland, Ore., where the state protected rural land from suburban encroachment with restrictive zoning laws in 1973, property taxes dropped 29 percent.
Suburbia's municipal fragmentation also makes government inefficient. New Jersey is rife with corruption in part because of the expense and complexity of maintaining 566 separate municipalities, each with its own city government, school districts and police force. If Gov. Chris Christie wants to cut government waste, he should lean on adjacent municipalities with duplicative services to merge.
More ALPS, plus "Designing Tomorrow"
A couple of us have mentioned with eager anticipation the ALPS (Association for Law, Property, & Society) conference coming up this weekend. In only its second year, ALPS has quickly become the conference for property scholars; as I told my students today, all of the cool property profs will be there (they thought the phrase "cool property profs" was an oxymoron, but I insist that it's actually a redundancy). The final program is posted here.
Chad suggested that we try to get together with anyone who's available on Friday or Saturday night. Sounds great to me, so if you are interested, feel free to email one of us or just link up at the conference.
Another thing that I've mentioned is how much I am looking forward to the chance to visit the National Building Museum, and their current featured exhibition Designing Tomorrow: America's Worlds Fairs of the 1930s. Anyone who studies land use knows how much of an impact that Worlds Fairs have had on Americans' ideas about city planning, architecture, technology, and the shape of our communities. The National Building Museum is only a few blocks' walk from the Georgetown University Law Center, where the ALPS conference is being held. So I'm trying to find a good time to sneak over there (which is difficult, because there are so many great panels to attend!). If you are interested in checking it out, let me know.
I leave Thursday morning so . . . see you at ALPS!
Move it! "Active Design" is coming through.
Those of you teaching or interested in design guidelines may wish to check out New York City's new "Active Design Guidelines." New York City has produced a wonderful 144-page document that "focus[es] on designers' role in tackling one of the most urgent health crises of our day: obesity and related diseases including diabetes." How does it do this, by focusing on "opportunities to increase daily physical activity, including . . . providing inviting streetscapes for pedestrians and bicyclists."
Complete with historical and medical facts, as well as old photos, the Guidelines detail four primary areas and make recommendations in those areas (Environmental Design & Health; Urban Design; Building Design; and Synergies with Sustainable & Universal Design). Encouragingly, the Guidelines were a joint venture among the Departments of City Planning, Design & Construction, Transportation, and Health & Mental Hygiene.
Long on Sustainability v. Sprawl in the Post-Public-Lands West
Jerry Long (Idaho) explores the causes of and reasons for a community's commitment to sustainable land-use planning in his recently posted Private Lands, Conflict, and Institutional Evolution in the Post-Public-Lands West, 28 Pace Env. L. Rev. ___ (forthcoming 2011). Here's the abstract:
As rural communities face amenity-driven population growth and globalizing culture and economic systems, the process by which those communities imagine and implement desired futures grows increasingly complex. Globalization- and technology-facilitated and amenity-driven population growth increases the value of place-bound benefit streams – including land – promoting increased levels of physical development and a changed built environment. At the same time, globalizing culture and evolving local demographics might alter local land-use ideologies, yielding a preference for resource protection and more sustainable local land-use regimes. This article engages in a theoretical and empirical exploration that seeks to answer a single question: Why, in the face of competing land-use ideologies, might a community choose to adopt a more resource-protective, or resource-sustaining, land-use regime? Ultimately, it is only upon witnessing the actual effects of previous choices on the ground – including most significant, real harm to valued social or natural amenities – that a community is able to imagine and implement a land-use regime that can protect the amenities that community values.
March 2, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Conservation Easements, Density, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Land Trust, Las Vegas, Local Government, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Suburbs, Sun Belt, Sustainability, Urbanism, Water, Zoning | Permalink | Comments (0) | TrackBack
Land Use & a Mosque in London
For those interested in zoning and religious buildings, the current enforcement proceedings aiming to close down the Tablighi Jamaat mosque in London make interesting reading. While local planners are resisting the application to maintain the mosque because of traffic levels, land contamination and visual impact, the enforcement hearing has been well informed about Tablighi Jamaat's apprent religious and political views, as well as attitudes to women. The dispute takes place in the context of the Tablighi Jamaat's aim to build a much larger, 'mega-mosque' on the site, a move which is opposed by many within the Muslim community.
Inevitably this planning dispute is taking place in the context of much larger debates about multiculturalism, identity and human rights. This comes to no suprise to land use lawyers of course ... land use issues are, whether acknowledged or not, inevitably much broader than the immediate impacts of the site.
March 1, 2011
Victory for EJ Clinic at Golden Gate
From Susan Ruthberg at Golden Gate Law:
Today, in Potrero Hill, the last fossil fuel power plant in the City of San Francisco will close after a decade of legal efforts by community groups, the City of San Francisco and Golden Gate University School of Law’s Environmental Law & Justice Clinic (ELJC). On December 21, 2010, local and state figures gathered to announce the closure. Late last week, the Federal Energy Regulatory Commission (FERC) made official the decision for today’s closure. For San Francisco residents in Bayview Hunters Point, Dogpatch and in the Potrero neighborhood where the plant is located, this means a future free of noxious air pollution.
ELJC Director Professor Helen Kang describes the significance of the final closure this way, “This is an environmental victory, but an equally important social justice coup, as these polluting plants were inevitably located in the low-income and working class neighborhoods of San Francisco, affecting a high percentage of non-white residents.”
Golden Gate Law’s ELJC and community groups have worked for decades on a regional level to reduce dependence on fossil-fuel based energy generation. Along the way, the Clinic filed a lawsuit against the Potrero power plant owner Mirant (now GenOn) to enforce the Clean Air Act, and law students testified before hearings held before the San Francisco Board of Supervisors.
ELJC was also involved in efforts that shut down the plant in Bayview Hunters Point in 2006. Eliminating fossil fuel plants in San Francisco required community groups (with ELJC performing legal work) to exhaust every possible avenue. Community groups organized and put on demonstrations, and legal advocates, including the Clinic and the City Attorney’s Office, monitored the power plants’ compliance with environmental laws and advocated for eliminating the use of bay waters as cooling sources for the plant—a practice that environmentalists say endangered aquatic life in the Bay.
Golden Gate Law Professor Alan Ramo, who led ELJC efforts in the early years, reflects on the decade-long, collaborative effort that made this monumental day possible. “I am grateful to ELJC’s clients such as the Bayview Hunters Point Community Advocates and Communities for a Better Environment for giving our Clinic the opportunity to support their tireless and heroic efforts. Likewise, we are deeply thankful for the consistent support of The City Attorney's office, and in particular Theresa Mueller, Supervisor Sophie Maxwell and (former) Supervisor Aaron Peskin.”
While today’s closure represents a tremendous effort and victory for environmental justice, it is one component of multi-faceted, global effort aimed at increasing renewable energy sources. At the United Nations Climate Change Conference in December 2010, scientists and environmental leaders agreed upon the need to address climate change globally. More stringent actions to reduce greenhouse gas emissions, in particular by industrialized nations (and in states like California), cannot be postponed much longer. Still, today’s plant closure is a powerful symbol of community solidarity. Resident and community leader Karen Pierce of Bayview Hunters Point Community Advocates describes the meaning of today’s closure this way: “This final closure demonstrates that communities working together along with their government can successfully eliminate fossil fuel and other pollutants that affect their neighborhoods and families.”
You can also read Helen Kang's blog post about the victory here.
Jamie Baker Roskie
Three Dimensional Master Plan?
For years cities, such as Montreal (the RESO), have been developing space underground. In what CNN reports as a "first," Helsinki has developed an Underground Master Plan. The plan designates a diverse group of uses for the underground area, ranging from industrial to recreation uses, such as an existing swimming pool (which, fortunately, doubles as a bunker when necessary). According to the report, Helsinki sits on bedrock strong enough to support the existing streetscape even when space is carved out for the lower levels. The CNN report claims a host of environmental benefits from the action, many of which are disputed in the comments.
As cities such as Helsinki start to think about the relationship between the street level and the subsurface (as inhabitable space), the next step may be to craft a three dimensional master plan. And who knows, this may be Seattle's chance to recommission its underground, although "[w]hen your dreams tire, they go underground and out of kindness that's where they stay." (Margaret Fuller).
March 1, 2011 in Architecture, California, Common Interest Communities, Community Design, Community Economic Development, Comparative Land Use, Comprehensive Plans, Density, Development, Downtown, Economic Development, History, Homeowners Associations, Housing, Local Government, New Urbanism, Planning, Politics, Property, Property Rights, Property Theory, Real Estate Transactions, Redevelopment, Smart Growth, Sprawl, State Government, Subdivision Regulations, Urbanism, Zoning | Permalink | Comments (0) | TrackBack
And so I take my leave...
Now that we are heralding in the month of March, my first stint at blogging is done. It was more fun than I expected and a good vehicle for me to come to terms with my land use side.
Thanks to Matt who invited me and all the other bloggers and readers for making me feel welcome.
- Jessica Owley
Introducing Jonathan Rosenbloom
We've had some really terrific guest bloggers here lately at the Land Use Prof Blog, giving us great contributions and ideas in a number of different areas of land use law. We now have the privilege of introducing Jonathan Rosenbloom, who will be joining us for March.
Jonathan is an Assistant Professor at Drake University, where he teaches and researches in the fields of Sustainability, Environmental Law, State & Local Government, and Property. His current research looks at issues in local government law with regard to sustainability. Jonathan previously taught as a visitor at Stetson, and he has substantial experience at the Center for New York City Law as well as in private practice and clerking. Now that he's in Iowa, though, he might be our first Midwestern contributor.* You can check out his bio page or vita, but more importantly, stand by to check out his contributions to the Land Use Prof Blog!
* With the possible exception of Tony Arnold. When I lived in Kentucky I occasionally heard something to the effect that "Lexington is Southern; Louisville is Midwestern."
February 28, 2011
Federal Sustainability Program May Get the Axe
The new Sustainability Communities Initiative by HUD, DOT and EPA is barely a year old, and the House Appropriations Committee has proposed to cut its funding before it gets off the ground. You can read an interesting piece on this issue on New Urban Network.
Jamie Baker Roskie
Making Comprehensive Planning Optional (in Georgia)
It's not getting much play in the media, but there is legislation moving through the Georgia legislature that would make local comprehensive planning and solid waste planning optional. Currently both are mandated by state law. Well, actually, comprehensive planning isn't mandated, exactly, but local governments must have comprehensive plans to quality for various kinds of funding, including state-administered community development block grants. (See the Georgia Department of Community Affairs website for more information about comprehensive planning requirements.) The Association [of] County Commissioners of Georgia and the Georgia Municipal Association both support the bill. Interesting, the Gwinnett Council for Quality Growth has expressed concern. The Council, which started out as a developers' organization, is apparently now largely populated by consultants and professional planners who make their living writing comprehensive plans (among other things). It will be interesting to see how this plays out, particularly given the precarious financial position of local governments.
Jamie Baker Roskie
Sounds like some type of painful oral surgery, eh?
Well, the good thing is that it doesn't hurt nearly that bad. In fact, for low density, auto-centric sprawl areas, the concept of densification offers a potential method for combatting the growing energy costs affiliated with sprawl.
This article explains how one area in our nation's capital is adjusting:
Prince George's County Executive Rushern Baker is standing at the Branch Avenue Metro station on a cold, windy morning, surveying the sea of concrete surrounding the suburban station.
It's mostly parking lots and green space, but Baker sees something else. In the distance, two tightly built residential communities give a hint of his vision.
"Everybody's focusing back on the Washington region and here we are, Prince George's County, as the only underdeveloped and undeveloped Metro sites," he said.
In Prince George's and Montgomery counties, planners are trying to overhaul their outdated suburban Metro stations to accommodate the demand for easy transit access and walkable communities from their growing populations.
February 27, 2011
2011-- End of the Housing Crash?
Well, this might be some good news about the housing market from Simon Constable in the Wall Street Journal: Why 2011 May Be the End of the Housing Crash. Although, when you read the whole article it seems decidedly more mixed than the headline might seem to indicate. From the article:
There might finally be some good news this year about the nation's dismal housing market. Or, at least, the bad news could stop. . . .
"Pricing is down so much in some markets that when you analyze renting versus owning it makes much more sense to own," says Michael Larson, a real-estate analyst at Weiss Research in Jupiter, Fla.
It is definitely bullish. But what about timing?
"Housing prices will probably bottom in 2011," says Scott Simon, a managing director at money-management firm Pimco in Newport Beach, Calif. He foresaw the housing crash, helping his firm dodge losses that plagued Wall Street.
The article also notes that because it might be a prolonged recovery, prospective homebuyers should plan to stay in place for at least 10 years (much more than the old conventional wisdom of three or four years to break even on the transaction costs). How does this square with the new mobility that has been all the rage in social commentary over the last couple decades?
Jones on Garner v. Gerrish and the Concept of "Home"
Bernie D. Jones (Suffolk) has posted Garner v. Gerrish and the Renter’s Life Estate: Teaching a New Concept of 'Home,' Faulkner University Law Review, Vol. 2, pp. 1-44, 2010. The abstract:
Property law scholars have been interested in Garner v. Gerrish, 63 N.Y.2d 575 (1984) because it presents a unique opportunity for discussing the boundaries of leasehold doctrine. As such, it is covered in various first-year property law textbooks. Its unusual fact pattern makes it useful as a means of helping students understand the differences among leaseholds for a term of years, the periodic tenancy, and the tenancy at will.
A landlord drafted a lease on a pre-printed form, writing in the terms of the lease, but without the advice of counsel. The lease had no end date and the tenant paid rent on a monthly basis. The landlord died within a few years of drafting the lease. In a dispute to determine the rights of the parties, the New York Court of Appeals held that since the tenant alone had the right to terminate, the landlord gave the tenant a determinable life estate. The tenant thus had a home for life, for which he need only pay the prescribed rent for as long as he chose to live on the premises. Though the case provided the basis for the Court of Appeals to modernize the tenancy at will in New York, I argue that it did not present the best fact pattern for doing so. Although the lease effectuated New York state rent control laws where they were not required by statute, it also indicates the possibilities to be found in disguised leasehold arrangements redefining the boundaries of “home.”
This article discusses the treatment of Garner v. Gerrish in typical first-year property textbooks. It explains and assesses the opinion from the trial court to the appellate decisions – the theories of the case developed by the parties, and the courts’ interpretations of landlord-tenant law. The article offers analyses of the archived records in the case that indicate the failures of the landlord’s executor to articulate the defenses of unconscionability and undue influence. It is unclear why the executor pursued this strategy.
Cases like these, where there are more questions than answers, present ideal opportunities for property law faculty to develop multifaceted pedagogical strategies. These might encourage students to think not only about doctrine but litigation strategies in the real estate context, and the perils to be found in flawed strategies that might result in decisions that go against them. In Garner v. Gerish, this meant a limited understanding of the case that coincided with prevailing pro-tenant sentiments in New York landlord tenant law.
I always enjoy teaching Garner v. Gerrish during the property course, and this article expands our understanding of the case from being a good example of certain issues with landlord-tenant law toward a larger commentary on the meaning of the home. The article also looks like it will be another good addition to the increasing literature on the backstories of leading cases (exemplified by the Foundation Press Law Stories series and other articles). Should there be a "Land Use Stories" volume?
Teaching Outside the Box
We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.
I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.
I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.
- Jessica Owley
Tribes, Land, and the Environment
I just returned from a stimulating one-day conference at American University's Washington College of Law called Tribes, Land, and the Environment. Organized by Ezra Rosser and Sarah Krakoff, it was a great mix of speakers on Indian law generally and environmental issues affecting/involving tribes significantly. Land use gets even more complicated when we add tribes to the mix and need to address the special issues of working with sovereign entities and federal law. I presented some of the initial findings of a larger study I am undertaking on how tribes use conservation easements. Specifically, I was examining instances where tribes hold conservation easements over land off-reservation. Much like other governments [as I have written about here], tribes use conservation easements to protect areas and ecological amenities outside their jurisdictions. I have been particularly intrigued by (1) whether tribes need to adhere to state law when entering into such agreements and (2) considering how the use of conservation easements interacts with tribes' views of property and the natural world. Intriguing stuff. If you see any examples of tribal holders in your necks of the woods, please let me know!
Many of the presentations at the conference, will appear in an edited volume of the same name.
- Jessica Owley
February 27, 2011 in Books, Conferences, Conservation Easements, Environmental Justice, Environmental Law, Federal Government, Local Government, Property, Property Rights, Property Theory, Race, Scholarship | Permalink | Comments (0) | TrackBack