Saturday, July 21, 2012
I recently wrote a brief article on the evolution of public art fees called Percent-For-Art Programs at Public Art's Frontier, which is available here. The abstract:
The federal government, many state governments, and an estimated 350 local governments have implemented percent-for-art fee programs that require a percentage of a project's construction cost to go towards public art. Historically, this resulted in a permanent, on-site art installation. An increasing number of cities, however, are experimenting with percent-for-art fees that fund off-site or temporary public art installations and performances that reflect changes in public art itself. This Article explores the legal implications of, and provides models for, implementing this new type of percent-for-art fee.
A lot of the article focuses on how public art is changing to assist in activating public space and law's role in assisting those changes. For those interested in this subject, be sure to check out Minneapolis-based Forecast, which publishes the Public Art Review. I also strongly recommend the books Public Art: Theory, Practice, and Populism by Cheryl Krause Knight and Public Art by the Book by Barbara Goldstein.
And for those interested in the broader subject of public spaces, one could do worse than taking an hour to watch William H Whyte's classic The Social Life of Small Urban Spaces, which is now available for free online.
Stephen R. Miller
In a study of two U.S. cities, researchers found that land use was a strong determinant of water use patterns.
Land-use, temperature, and single-family residential water use patterns in Portland, Oregon and Phoenix, Arizona by Betsy Breyer, Heejun Chang, G. Hossein Parandvash
Applied Geography, Volume 35, Issues 1–2 (2012) ($)
Adaptation to climate change requires urban water providers to develop a complex understanding of how temperature affects water use patterns. We used a geographic information system and statistical analysis to compare the spatial relationships among single-family residential water use patterns, land use characteristics, and temperature in Portland, Oregon and Phoenix, Arizona. We developed mean water use patterns at the census block group level using data from 2002 to 2009 in Portland and from 2000 to 2008 in Phoenix. These mean values were used to estimate the localized temperature sensitivity of water use in each census block group through an ordinary least squares regression with summer average air temperature. Taking the slopes of regression estimates as our dependent variable, we examined spatial relationships among temperature-sensitive water use patterns, housing density, impervious surfaces, low vegetation, and tree canopy extent. Temperature sensitive water use was found to be positively correlated with low vegetation and negatively correlated with impervious surfaces in both cities. Tree canopy coverage tends to increase with sensitivity in Portland, while the reverse relationship is found for Phoenix. Regression analysis indicates that building density explained the most variation in the dependent variable in Portland whereas, in Phoenix, the strongest correlations related to vegetation patterns. A comparative approach highlights the complex, localized correlations that exist among local climate regimes, urban landscapes, and water use patterns. Census block group-level water use analyses equips water providers with detailed information on the sensitivity of local water use to temperature variation, which could prove valuable to developing a viable municipal climate change adaptation strategy.
Friday, July 20, 2012
Lesley McAllister recently announced a symposium on Climate and Energy Law that might be of interest to our readers. Land use is so closley entwined with energy sprawl, electricity distribution, and facility siting, I am sure it will be discussed extensively in San Diego in November.
USD Climate & Energy Law Symposium, SAVE THE DATE - Nov. 9, 2012
The University of San Diego School of Law will host its Fourth Annual Climate & Energy Law Symposium on Friday, November 9. The 2012 symposium will bring together leading academics and practitioners to explore the theme of Law in a Distributed Energy Future with questions such as:
- How should the rules that govern the electricity grid change to incorporate distributed generation?
- What possibilities exist for generating energy at the neighborhood and community levels?
- What legal and policy innovations at the federal, state and local levels are most needed to usher in a distributed energy future?
Confirmed speakers include: Carla Peterman, Commissioner, California Energy Commission (Keynote) Scott J. Anders, Director, Energy Policy Initiatives Center, University of San Diego School of Law Sara C. Bronin, Associate Professor of Law & Program Director, Center for Energy & Environmental Law, University of Connecticut School of Law Timothy Duane, Associate Professor of Law, Vermont Law School Joel B. Eisen, Professor of Law, University of Richmond School of Law Michael B. Gerrard, Andrew Sabin Professor of Professional Practice, Columbia Law School Lesley K. McAllister, Stanley Legro Professor in Environmental Law, University of San Diego School of Law J.B. Ruhl, Matthews & Hawkins Professor of Property, Vanderbilt Law School Katherine Trisolini, Associate Professor of Law, Loyola Law School Hannah Wiseman, Assistant Professor, Florida State University College of Law
Thursday, July 19, 2012
I am very excited for the opportunity to blog on the Land Use Prof Blog over the next month. Thanks to Matt Festa and the other editors for inviting me to do so. As Matt mentioned in his introduction, I am a Research Fellow at NYU's Furman Center for Real Estate and Urban Policy. For those not familiar with the Center, we are a joint endeavor of NYU's law and public policy school and we conduct interdisciplinary legal and empirical research on land use, affordable housing, housing finance, neighborhood change, and a host of other urban issues. Although we particularly focus on issues in New York City, we are increasingly pursuing projects in other cities and working on national affordable housing and urban policy issues.
My plan during the next month is to talk about a few interesting projects I am pursuing with the Furman Center, a few of my personal research projects, and of course to write about new land use issues.
For this first post, I thought I would discuss one of the big land use issues on our radar here in New York, Mayor Bloomberg's recent proposal to rezone a significant part of East Midtown Manhattan, in the area around Grand Central Terminal. Over the past decade the Bloomberg administration has dramatically altered New York City's zoning through over 100 rezonings affecting approximately one-quarter of the city's land. This new proposal, which includes changes in the rules governing the use of the air rights/transferable development rights over Grand Central (the rights at issue in Penn Central, only a fraction of which have been sold) raises a number of interesting issues and questions.
The proposed rezoning (see the Department of City Planning study presentation) covers 78 blocks and seeks to encourage the development of more modern and taller office buildings in an area where the average office building is currently over 70 years old. The proposal would allow new buildings substantially taller than what currently exists in the area and potentially as large as the Empire State Building. These new buildings, which would only be allowed on sites that cover a block's full frontage on one of the area's avenues, would provide larger floor plates, fewer internal supports, and other amenities the City feels are needed for the area to stay competitive with business districts in "global competitor cities."
What is particularly interesting is that -- rather than simply upzone the area to allow these larger buildings -- developers would be able to obtain greater densities (through a higher maximum floor-area-ratio) as-of-right (meaning no required city planning approval process) only by either purchasing transferable development rights (TDRs) from nearby landmarks (the major seller being Grand Central, which has nearly two million square feet available) or by obtaining a bonus in exchange for a contribution to a City fund dedicated to area improvements. Beyond these as-of-right FAR increases, even taller buildings (close in size to the Empire State Building) could be constructed, but would be subject to a Special Permit process, which would include a design review and would require certain public improvements to be provided.
The proposal raises a host of issues. If additional density is desirable in the area, why not simply rezone, rather than require the purchase of TDRs on the private market or contributions to a City fund? Is the City simply selling an upzoning or demanding an exaction from developers? And of course, for area residents and workers and potential developers other concerns exist: what effect would these new buildings have on the nearby subway, which already operates above capacity, and how much will it cost to buy these additional square feet of permitted development?
The proposal is also interesting because it represents the latest example of the City's creative use of transferable development rights, a tool that in New York has historically operated in a manner akin to density zoning or, in the case of landmarks, as a means of mitigating the effects of development restrictions. These new programs in New York use TDRs instead as a means of furthering traditional and quite specific planning and land use goals in a manner more akin to how TDRs have been used in suburban and rural areas nationwide. The City's proposal builds upon the use of TDRs in the rezoning of West Chelsea, site of the elevated High Line Park, and at Hudson Yards, an area west of Penn Station in Midtown Manhattan. Both these districts involve the innovative use of TDRs to serve a variety of planning, preservation, and development goals. Vicki Been and I will be exploring these themes further in a forthcoming article.
At the Furman Center, we are also nearing completion of the first comprehensive database of TDR transactions in New York City. We have recorded data on over 400 of these transactions between 2003 and 2011 and have begun reviewing the data to learn more about the market for TDRs in New York and how developers use them in place or in addition to other tools for increasing the size of a project. I plan to say more about this data, our plans for it, and its relevance for thinking about TDRs in other cities in a future post.
Wednesday, July 18, 2012
Garrett Power (Maryland) has posted Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010), 25 Widener Law Journal (2012). The abstract:
In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.
It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn. Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings. Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed. The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty. Here's a copy of the TRO.
Tuesday, July 17, 2012
John Infranca is a Legal Research Fellow at the Furman Center. Prior to joining the Center, he served as a law clerk to Judge Julio Fuentes, United States Court of Appeals for the Third Circuit, and Judge Berle Schiller, United States District Court for the Eastern District of Pennsylvania. John received a J.D., Order of the Coif, from New York University School of Law, where he was an editor of the New York University Law Review, a Lederman Fellow in Law and Economics, and a fellow in the Arthur Garfield Hays Civil Liberties Program. He also earned a B.A and an M.T.S. degree (in moral theology) from the University of Notre Dame. After college and during graduate school, John worked with a number of homeless services organizations, as a case manager for refugees, and as the director of a service learning program in Mexico. He has authored law review articles on the Earned Income Tax Credit and the informal economy, on protecting social security benefits from bank freezes and garnishments, and on institutional free exercise and religious land uses. At the Furman Center, John’s research focuses on land use regulation, affordable housing and urban policy. His recent projects have included providing technical assistance to the court-appointed monitor overseeing a fair housing settlement, analyzing the impact of the market downturn on multi-family rental housing, and legal and empirical studies of development rights transfers, rezonings, and residential landlord characteristics and behaviors.
John already has some great writing out there, and I've seen him at ALPS; we're thrilled to have this rising star join us at the Land Use Prof Blog for the next month.
The latest report from the NYU Furman Center for Real Estate & Urban Policy:
We are pleased to share with you our latest New York City Quarterly Housing Update (Q1 2012). We find that home sales volume rose in the first quarter of 2012, with the number of transactions citywide up almost five percent. Housing prices throughout the city are up 3.5 percent compared to the same quarter last year. In the Bronx, however, prices fell more than nine percent between the fourth quarter of 2011 and the first quarter of 2012--the largest single-quarter decline in the borough since 2002.
The report also finds that the number of foreclosure notices issued in Q1 2012 has fallen citywide since its peak in the third quarter of 2009. However, foreclosure notices in Queens and Staten Island increased by more than 20 percent from the fourth quarter of 2011. You can read the full report here, or the press release here.
The Furman Center's Quarterly Housing Update is unique among New York City housing reports because it incorporates sales data, residential development indicators, and foreclosures. It also presents a repeat sales index for each borough to capture price appreciation while controlling for housing quality. The publication is available on a quarterly basis at:
Valuable data and analysis, as always.
Stephen Clowney (Kentucky), our colleague over at Property Prof, has posted his latest piece, called Landscape Fairness: Removing Discrimination from the Built Environment, forthcoming in the Utah Law Review (2012). It looks very interesting. The abstract:
At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.
After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.
The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.
This article touches on one of the most important but least discussed aspects of land use and the community landscape, and it builds on some of Steve's earlier work. Check it out.
Those interested in green building issues will want to check out a June 25, 2012, Ninth Circuit decision, Building Industry Association of Washington v. Washington State Building Code Council, Case No. 11-35207. In a case of first impression at the appellate level, the court held that the Energy Policy and Conservation Act of 1975 ("EPCA"), 42 U.S.C. § 6295, et seq., did not preempt the State of Washington's 2009 law requiring that new building construction meet heightened energy conservation goals.
The case is of particular import because Washington's program utilized a credit-based program, like many other green building codes, that did not dictate particular products but added or subtracted credits on the basis of options chosen by builders with the goal of reducing new construction energy use by 15% based on a 2006 baseline.
Also of interest, the case distinguished itself from a previous district court decision that held the City of Albuquerque's green building standards were preempted by EPCA. See Air Conditioning, Heating, and Refrigeration Institute v. City of Albuquerque, 2008 WL 5586316 (D. N.M. 2008). Unlike in the Albuquerque case, Washington offered methods of compliance that did not require purchase of more energy-efficient appliances. That made all the difference to the court, which held that Washington's law "does not create any penalty or legal compulsion to use higher efficiency products."
This promises to be an important precedent for those considering the structure of credit-based energy efficiency regimes.
Stephen R. Miller
Monday, July 16, 2012
Michael Lewyn (Touro) has taken his analysis of sprawl north of the border in Sprawl in Canada and the United States, 44 Urban Lawyer 85 (2012). The abstract:
The purpose of this article is to show that, in Canada as in the United States, government regulation promotes sprawl through anti-density zoning, minimum parking requirements, and overly wide streets. However, Canadian cities are less "sprawling" than American cities- perhaps because at least some of these regulations are less onerous than in the United States.
It's an interesting article that makes an original point. We tend to assume that places like Canada must be more regulated than the US, but it isn't necessarily true when it comes to land use. Lewyn suggests a potential link to comparative levels of sprawl.
Sunday, July 15, 2012
I wanted to add a few notes to follow up on Jessica Owley’s post about The Environmental Law Collaborative (ELC) meeting in Connecticut last week. I was lucky to be chosen as one of the participants for this initial meeting of the group and its exploration of issues around sustainability and climate change. I want to offer my sincere thanks to Jessica Owley, Keith Hirokawa, Mike Berger, and Elizabeth Burleson for not only organizing a great three days, but bringing to fruition what I believe is a new way for scholars to meet and discuss ideas. I would agree with Jessie that this event was among the best I’ve attended in my (very young) academic career. In reflecting on the weekend, I had several thoughts on how the structure of the event affected my conception of academic engagement:
--The small group size and informal nature of the group provided an opportunity for more discourse that is typical in formal panel presentations. Judging from the success of the event, it seems to me law schools should encourage and fund more of these smaller, informal get-togethers.
--There was a nice mix of junior and senior scholars, and that really did add to the pleasure of the event.
--Keeping a small group seems important to the dialog. Of course, the question then becomes how to include more people in such events. I wonder if there would be a way to “package” the experience, like TED has done with its lecture series, and make it easier for more people to participate in multiple, simultaneous small fora, but all under the rubric of one large topic. For instance, what if there were multiple groups around the country simultaneously engaged in essentially the same thing we were doing in the woods of Connecticut? That is an ambitious project, but could be a way to foster both intimate conversation and create a larger dialog.
I seem to recall agreeing to help plan the next meeting of the ELC, which will likely be a couple years down the road. I can only hope to build on what Jessie, Keith, Mike and Elizabeth started this summer, which will be a hard act to follow.
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- Stephen Miller on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
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- Jesse Richardson on Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?
- The failure of economic development in Baltimore – and Milwaukee
- Shocking Allegations of Rough Justice at a P&Z Hearing in the Rural West: Environmental Activist Opposing Oil and Gas Project at Public Hearing Charged with Criminal Trespass and Spends Five Days in Isolation
- Cheever & Owley on Enhancing Conservation Options
- Planning for States and Nation-States in the U.S. and Europe
- New study highlights worker conditions in the sharing economy