Friday, June 29, 2012
This summer I've been dipping into philosopher Edward S. Casey's (SUNY Stonybrook) work. In his 2005 book, Earth Mapping: Artists Reshaping Landscape, there are a number of great passages, but one I found particularly interesting was where Casey defines four approaches to the concept of mapping. He defines these four approaches as follows:
“Mapping of. To make a map of something is to make a map of a particular place or territory in the effort to capture its exact geography, its precise structure, its measurable extent.”
“Mapping for. Mapping is for something, and not strictly of something, when it is designed expressly for some particular purpose.”
“Mapping with/in. Where the first two kinds of map are indicative signs by their very nature and function—each being a subsistent particular that points to the presumed existence of another such particular (i.e., object place or region)—a map with/in proceeds by adumbration rather than by indication: by indefinite indirection rather than by definite direction. Instead of the land (or sea or city) as a discrete entity or the relationship among the locales themselves, what is mapped here is one’s experience of such locales. Such mapping concerns the way one experiences certain parts of the known world: the issue is no longer how to get there or just where ‘there’ is in the world-space, but how it feels to be there, with/in that very place or region, whether the feeling itself is one of amazement or boredom, duress or ease. I divide up the word within in order to signal the internal complexity of this experience.”
“Mapping out. To the degree that I find myself with/in the living landscape, I am part of that landscape, just as it is part of me. The boundaries between myself as mapmaker and the earth I map—boundaries that become strict borders in the case of the official cartographer, who is a representative of a ‘major science’—are porous when I bodily feel a given landscape. I am of it, and it of me: in a subjective genitive sense of of that means “belonging to.” But just because of this mutual incorporation of self and earth, the human subject must find a way out if he or she is to re-present the experience of deep immersion in such a manner as to make this experience accessible to others. There has to be a moment or mode of what is misleadingly called expression—misleading insofar as this implies an enclosed subjectivity that literally presses outward what it already feels or knows—but what is better designated as mapping out, getting the experience into a format that moves others in ways significantly similar to (if not identical with) the ways in which I have myself been moved by being with/in a particular landscape.”
I found Casey's approach to mapping an interesting analytical framework, and one potentially applicable to a range of land use legal scholarship.
Thursday, June 28, 2012
Timothy M. Mulvaney (Texas Wesleyan) has posted Exactions for the Future, Baylor Law Review vol. 64, p. 101 (2012). The abstract:
New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.
Tuesday, June 26, 2012
No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour. Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues. From Obamacare and Federalism's Tug of War Within:
In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions. And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal. For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.
. . . .
In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.
Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision. Professor Ryan has a new book on the subject called Federalism and the Tug of War Within.
And, so yes, there is a land use angle to the Obamacare decisions. But you already know that there's a land use angle to everything.
Back in January I opined my belief that The Descendants was the only Oscar-nominated film in recent memory where land use was the driving force of the plot. Blogger Ken Stahl also weighed in on The Descendants' land use theme.
The post subsequently caused some conversation around the law school water cooler here. Associate Dean Lee Dillion (also a former planning commissioner) mentioned to me that there was a film--not Oscar-nominated mind you--but a very famous French film where land use and water rights were also central to the plot. The movie, Jean de Florette, even stars Gérard Depardieu as a young(er) man.
Rotten Tomatoes describes the plot as follows:
Co-adapted by director Claude Berri from a novel by Marcel Pagnol, this hugely successful French historical drama concerns a bizarre battle royale over a valuable natural spring in a remote French farming community. City dweller Jean Cadoret (Gérard Depardieu) assumes ownership of the spring when the original owner is accidentally killed by covetous farmer Cesar Soubeyran (Yves Montand). Soubeyran and his equally disreputable nephew Ugolin (Daniel Auteuil) pull every dirty trick in the book to force Cadoret off his land, but the novice farmer stands firm. Although the Soubeyrans appear to gain the upper hand, the audience is assured that they will eventually be foiled by the vengeful daughter of the spring's deceased owner -- thus setting the stage for the film's equally successful sequel, Manon of the Spring.
I just watched Jean de Florette last weekend, and I have to say, it put a human face on a lot of those early water rights cases. For the land use prof seeking a little summer escape, I couldn't recommend Jean de Florette more highly. If you really like it, there's also a sequel, Manon des sources. See trailer here.
Just wanted to follow up on Stephen Miller's post about the new TDR Handbook. I've had the privilege of working with co-author (and planning consultant extraordinaire) Rick Pruetz on several TDR projects here in the Southeast. This Handbook is a follow on to Rick's two previous books, Saved by Development and Beyond Takings and Givings. Rick is amazingly knowledgable and very generous with his time and expertise. We just finished helping the City of Milton implement a TDR program as part of their form-based code. I will continue to work with Rick during my year off (which starts Friday!).
Jamie Baker Roskie