Friday, April 13, 2012
Today was the very last class for the UGA Land Use Clinic, and my last class as managing attorney. (If this is news to you, you might want to read this previous post for background.) It's a bittersweet day for me, but now I want to take the opportunity to brag on my students a bit.
I've had a fantastic group of students this semester. (My students are always great, but this group is particularly great.) They've worked really hard and taken up a lot of the slack as I've been distracted by my upcoming move and several other challenges, including my husband recently breaking his shoulder.
Several of the students have worked on a Food Cart/Truck project with UGA College of Environment & Design students. It's been a two year effort involving a "Mobile Food Vending Study" as well as a Food Cart Festival and, just this week, a presentation to a committee of the Athens-Clarke County Commission on proposed changes to the local Food Cart ordinance to allow for a few more spaces for food carts and food trucks in downtown Athens.
Per Ken Stahl's recent post, food trucks are a controversial local land use issue. Here there has already been lots of push back from local restaurants. However, it's interesting to note that a local restaurant - Farm 255 - has provided much of the impetus for food carts in Athens, as a "Farm Cart" is an integral part of their business model. My students tell me the reality is there's very little data on the impact of food trucks on restaurants, but that doesn't do much to sooth the fears of the restaurant owners. I may not be around to see the ultimate impact of this project, but I'm very proud of the work the law and the design students have done.
Jamie Baker Roskie
John Gillespie (Monash University) has posted Exploring the Limits of the Judicialization of Urban Land Disputes in Vietnam, Law and Society Review, Volume 45, No. 2, pp. 241-275, 2011. The abstract:
Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.
Thursday, April 12, 2012
This looks like a fascinating legal history/land use story. Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases--A Micro-History. The abstract:
Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?
Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.
Wednesday, April 11, 2012
I just returned from a short commute down to our other research and teaching laboratory in the southeastern part of our state (with Stephen Miller and the students from our Boise-based Economic Development Clinic). Of course, given Idaho’s geography, that commute is over 1,200 miles roundtrip and requires heading in the wrong direction for the first 90 miles before detouring through Montana. But I was able to stop for a bike race in Missoula on Saturday, and then ski with my brother in Wyoming on Sunday, so it turned into a somewhat normal traveling weekend in this part of the world.
As I traveled home and watched the growing tapestry of insect remains develop on my windshield, I gradually realized that it represented something of a land-use-law Rorschach test. While I prefer my insects alive (I studied biology and have two young boys), the growing number of dead insects continually improved my mood. I ultimately realized that those dead insects represented two things to me. First, that spring has finally arrived. And second, that I had just traveled to someplace worth traveling to.
What does this have to do with land use law? Stephen’s clinic students have been working with the Teton County, Idaho planning department and county commissioners on a number of land-use issues, including how the county might deal with the hundreds of paper subdivisions that are scattered across the county’s rural areas (and, not insignificantly, they’ve also addressed how to deal with ‘dogs at large’). As I listened to their conversations, I thought about how most of our land-use law developed in urban and suburban areas. And I thought about how our land-use law might be ill-equipped to deal with rural land-use issues.
Other academic disciplines argue that rural places are different in some fundamental way, even if they struggle to describe it. Rural Sociology and Rural Geography are distinct academic sub-disciplines with their own theories, methodologies, and understandings of how people interact with each other and their lands and landscapes. And Planning departments often draw boundaries between rural and urban planning.
But what about the law and the legal tools we use to implement those plans and understandings? In Idaho, at least, we treat counties and municipalities equally. They have the same land-use authority, developed in the same statutory regime, and are treated equally by court decisions interpreting those statutes. They use the same tools. But they often deal with different issues in different social, cultural and ecological landscapes. Why does it make sense to use the same legal tools to address all of the complex tapestry of issues we encounter across our diverse urban, suburban, and rural landscapes?
So why is the insect-splattered windshield a land-use Rorschach test? Because I think our reactions to it might say something about how we think about place. Is it just an annoyance that requires cleaning? Or is it something else? And what does that decision say about how we think about land? I know I shouldn’t generalize my personal experiences, but to me the insects represent emptiness, distance, and place in a particular way. More than anything, they represent something that is not urban. And those things -- and the social and cultural structures they engender – require a different approach to land-use regulation.
My last post discussed some of the backlash against Southern California's new regional plan, which emphasizes high-density transit-oriented development. California Planning & Development Report now provides some of the details of the plan, including:
- a total cost of $524 billion over 20 years
- $6.7 billion in funding for biking and walking
- $246 billion on public transportation
- 80 plus percent of all jobs and housing within a half mile of rail stations or bus stops by 2035
- 68% of all new development would be apartment or condos.
Monday, April 9, 2012
I hope you all have had a happy holiday--not Passover or Easter, which were celebrated this weekend-- but rather today's holiday: Dyngus Day! Readers know that we like to do the occasional holiday land-use post, so here goes.
Dyngus Day is an east-central European tradition, primarily from Poland, that is celebrated on Easter Monday. It appears to come from a pre-Christian veneration of the pagan gods of water (Dingus) and earth (Smigus). It's linked to the spring themes of rebirth, renewal, and even "spring cleaning." Apparently the tradition is that on Dyngus Day the young men get to pursue the young women whom they wish to court with buckets of water and willow branches. Today, both sexes can participate and there seems to be much use of squirt guns and water balloons.
What's the land use angle? Well, first, the whole seasonal/earth/water/renewal theme resonates with the land. But the next chapter of the Dyngus Day story is how it flourished in America from the height of 19th Century Polish immigration to today, and that story involves the same local government and politics issues that are familiar to land use observers. Dyngus Day first became a big deal in northern U.S. cities with large Polish-American immigrant populations. The sources I've read haven't quite come out and said so, but my impression is that the original American Dyngus Day celebrations probably had the intention of serving as the Polish-American equivalent of an ethnic pride/civic engagement day along the likes of what St. Patrick's Day was for the Irish and Columbus Day for the Italians. Dyngus Day traditionally involved a mix of festival and politics, such as when RFK gave an important campaign speech at the West Side Democratic Club's Dyngus Day affair in South Bend, Indiana. So Dyngus Day is part of the great American history of urban politics and local government.
In the last couple of decades there seems to have been something of a Dyngus Day revival. Buffalo is leading the way on the Dyngus front. It claims to have the world's largest Dyngus Day festival. There are also significant Dyngus events in Cleveland, Pittsburgh, South Bend, Milwaukee, and other cities. Of course these community events require the involvement of planners, street closures, and permits. The Buffalo Dyngus Parade is a centerpiece, and everyone knows that civic parades have land use implications. They even have a facebook page. Mostly, it's just a good time, an important community event, and a good example of local public-private cooperation.
I studied a lot of Polish history as an undergraduate, and I have my own fond memories of one Easter Monday striking out away from campus into South Bend (once one of the world's largest Polish-speaking cities), seeing the parade, and ending up down at the American Legion's Dyngus Day party, with good kielbasa, pierogies, and music. Remember, Everybody's Polish on Dyngus Day!
Larissa M. Katz (Queen's University) has an important new piece up: 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power, forthcoming in the Pennsylvania Law Review (2012). The abstract:
A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance state power, too. Because many of the state’s core governance functions are territorially defined (such as the maintenance of peace and order within the territory, defense of the territory from external threats, and the provision of infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that enables a state to govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or licence. Thus, it is useful to think of the state’s power to define property rights in a manner that includes the obligation to carry out core state governance functions as itself a mode of governance. I call this “governing through owners.”
This model of state-owner relations emerges from two important conceptual starting points: first, the nature of ownership as an office through which the state assigns burdens; and second, what I call the “survival conditions” of a territorially defined state, namely, the establishment of basic governmental functions throughout its territory.
Looks like a must-read.
In this Wall Street Journal opinion piece, transportation planner Wendell Cox claims that state and regional planners are driving people out of the state of California with their plans for high-density, transit-oriented development, which he calls a "war" on the single-family home. According to Cox, requiring a change from a primarily single-family suburban to a multi-family urban settlement pattern will make "the state's famously unaffordable housing .. even more unaffordable."
I am at a loss to understand how multi-family housing is going to be more expensive than single-family housing. Cox's claim rests on economic data drawn from William Fischel and others showing that land use regulations in California, such as urban growth boundaries, development moratoria, and so on, generally drive up the cost of housing. This is true, but only because most of these regulations either restrict the overall supply of housing (development moratoria) or force developers to internalize the costs of new growth (exactions). Urban growth boundaries, by contrast, will not necessarily increase housing prices as long as growth is permitted at sufficient densities within the UGB to offset the loss of housing outside the UGB. Yet, Cox places the blame squarely on increasing density!
Furthermore, it is ironic that Cox sees salvation in reverting to the single-family lifestyle, when of course all of the cost-increasing restrictions he now decries, such as moratoria and exactions, have been called into service in order to subsidize single-family homeowners and exclude affordable, multi-family housing.
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- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
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- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire
- APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
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- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy