Saturday, February 11, 2012

How the Occupy Movement Challenged The Existing Model of Local Governance

I hope Matt will forgive me for moonlighting, but The Atlantic Cities blog (a great resource I have blogged about before) invited me to write a guest blog post about how the Occupy protests challenged the predominant model of urban government.  You can check it out here.  My basic thesis is:

The Occupy movement challenged cities’ attachment to mobile capital by making place central to its worldview. In establishing flimsy tent-cities in actual urban spaces and refusing to leave, the Occupy protests mocked the idea of mobility peddled by urban officials. More than that, they implicitly advocated the notion that urban areas are places bound up with the identity of local communities, rather than disposable products in a global marketplace. 

Ken Stahl

February 11, 2012 in Downtown, Local Government, New York, Politics, Urbanism | Permalink | Comments (1) | TrackBack (0)

Friday, February 10, 2012

Pennsylvania Limits Municipal Zoning Power

The Pennsylvania legislature approved a bill that limits municipalities zoning
power with respect to gas drilling. The issue of municipal authority to zone for hydraulic fracturing and related operations has been a significant issue in Pennsylvania as it has in New York
(see February 2, 2012 post). Pennsylvania courts had determined the contours of municipal power but Governor Tom Corbett and industry representatives pushed a through bill that requires municipalities
to permit nearly all types of oil and gas operations in all zoning districts including residential neighborhoods and sensitive natural and cultural resource protection areas. The bill does not offer any increased protection to environmental resources although it does include some bonding requirements. Called a “compromise” the bill does include impact fees payable to the counties
and municipalities but concerns have been raised that the fees are insufficient to offset any costs. Governor Corbett is expected to sign the legislation this week.

February 10, 2012 in State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2012

Benson on the Failure of Law to Protect Public Water Uses

Reed Benson (New Mexico) has posted Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States, Journal of Rural Law and Policy, Vol. 1, No. 1, 2011.  The abstract:

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.

This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.

Matt Festa

February 9, 2012 in Environmental Law, Property Rights, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Hanging Fabric on the Water in Colorado?

While environmentalists and avant-garde artists are sometimes assumed to be political bedfellows, it turns out that they are not always cut from the same cloth.  There's a controversy over a famous artist's plans to drape the Arkansas River in copious amounts of textile product.  From the New York Times story Note to Christo: Don't Start Hanging the Fabric Yet:

CAÑON CITY, Colo. — The shouting isn’t over for “Over the River.”

The $50 million project by the artist Christo, who hopes to drape nearly six miles of the Arkansas River here in southern Colorado with suspended bank-to-bank fabric, received approval from federal land managers late last year.

But on Wednesday, a new battlefield emerged in law and local politics: in Denver, opponents filed a federal lawsuit aiming to block construction, which Christo had hoped to begin this summer. The suit argues that land managers violated federal law in approving the plan and gauging its environmental impacts.

And there are some intrepid law students involved in the case. 

The lawsuit, filed on ROAR’s behalf by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs.

An interesting issue, with both sides clothed in good intentions.  Understandably, no one wants to pull the wool over the eyes of any interested party, least of all the wildlife.  Hopefully the project is not a wolf in sheep's clothing.  I hope it doesn't irreparably tear at the fabric of the regional community.

Matt Festa

February 9, 2012 in Environmentalism, Politics, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2012

The Bizarro Mount Laurel Doctrine

How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:

Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas.  It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.

The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.

Ken Stahl

(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)

February 7, 2012 in Affordable Housing, First Amendment, Housing, Local Government, Zoning | Permalink | Comments (1) | TrackBack (0)

What Role For A Memorial Park?

New York has chosen a design for an AIDS memorial park titled “Infinite Forest” in Greenwich Village.  Located on a triangle bordered by 7th Avenue, Greenwich Avenue, and West 12th Street, the park is located on the former site of St. Vincent’s Hospital, home of New York City’s first AIDS ward in the early 1980s. The design by Brooklyn firm a+i will incorporate a birch grove surrounded by walls on three sides.  The interior walls of the parks are mirrored, and the exterior walls are covered in slate to allow people to write messages on the walls in chalk.  The site became available when St. Vincent’s went bankrupt in 2010 and the former hospital campus was bought by a development company for a luxury housing complex.  

The competition, run by Michael Arad, the designer of the National September 11 Memorial, selected the winner on January 30th after receiving 475 entries.  The competition design, which may replace the developer’s original design, received both positive and negative reactions from the community.  The developer, Bill Rudin, may not go forward with the design because prior plans have already been approved by the City Planning Commission and other groups. 

Some opposed to the new design said it was “dreadful” and would attract graffiti.  The new design also appears to conflict with what neighborhood groups originally asked for in a park—a community space, not a “destination.”  The President of the Greenwich Village Block Association said that design “looks like it was by people who don’t live in the neighborhood and don’t have any idea what the community wants.” 

Although small, the space has the potential to provide greenery in the dense West Village, a place to sit outdoors, and a place for families and children to play outside.  The neighborhood-park model centers on having a place where members of the community can interact and reconnect with each other in a shared space.  The new design is short on these features, and the fact that it is surrounded by walls on all three sides doesn’t contribute to a sense of openness or availability. 

On the other hand, the park’s location seems to be an ideal location for a space dedicated at least in part to commemorating the AIDS epidemic.  St. Vincent’s was the largest AIDS ward on the East Coast and was referred to as the “ground zero” of the AIDS epidemic.  The park is also next to the LGBT Community Center, where early AIDS advocacy/support groups, like ACT UP began.

The park and the AIDS memorial have certainly raised questions about what the primary purpose of the site should be—a place to memorialize people lost in the AIDS epidemic and to remember the work done at St. Vincent’s, versus a community green space designed for those living in the neighborhood enjoy.


Susan Kraham

February 7, 2012 in Community Design | Permalink | Comments (0) | TrackBack (0)

Monday, February 6, 2012

Land Use Planning in a Recession - Newton County, Georgia

During his excellent stint as a guest blogger, Stephen Miller posed the question, "Does the best planning happen in a recession?"  Like him, I tend to think that currently most jurisdictions are focused on crisis management rather than forward thinking.

However, one exception is Newton County, Georgia - a community that just happens to be a UGA Land Use Clinic client since we began assisting them in 2003 with sprawl reduction tools like infrastructure planning, agricultural land conservation, and transferable development rights. Newton's forward thinking planning processes are highlighted in a four part series on CoLab Radio.  The first of the series is entitled "Planning for Growth in a Recession."

Jamie Baker Roskie



February 6, 2012 in Community Design, Development, Georgia, Local Government, New Urbanism, Planning, Smart Growth, Sprawl, Suburbs, Transferable Development Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, February 5, 2012

Eminent Domain and Marcellus Shale

The recent approval by FERC of a 39-mile natural gas pipeline in the Endless Mountains of northern Pennsylvania has precipitated a wave of eminent domain proceedings as Central New York Oil & Gas forges a path for its pipe. However, the company’s widespread use of eminent domain conflicts
with the assurances it gave to FERC when it sought approval of the project, as it told the Commission that it would obtain the necessary land “through negotiated agreements with landowners, thus minimizing the need” to condemn land. Despite these assurances, the Associated Press recently reported that CNYO&G was preparing condemnation papers against dozens of landowners while FERC was still in the process of considering its application for the pipeline.

CNYO&G began eminent domain proceedings almost immediately after securing FERC’s approval,
and of the 152 individual property owners along the Endless Mountain route, 74 found themselves in court within days of the approval. While CNYO&G stated that it attempted to negotiate in good faith with landowners, and claimed that it reached compromises with the majority of affected individuals, the company has threatened to withdraw any offer of compensation if landowners challenge the amount tendered. Additionally, because FERC’s ruling empowered CNYO&G with the threat of condemnation, some landowners have claimed that it has been able to offer significantly lower
amounts than it might otherwise have to. Landowners may thus be finding themselves in the uncomfortable position of having to accept an extremely low offer or seek a more realistic market value in court.

As the natural gas industry continues to experience explosive growth,
its demand for pipelines will similarly increase, and it will be interesting to see what, if any, impact CNYO&G’s striking reliance on eminent domain will have on the construction of future pipelines. Will FERC be as willing to rely upon assurances that companies will only use eminent domain as a last resort? Will states take the unlikely step of bolstering the compensation of landowners through new legislation or regulations? Will landowners begin to more widely refuse offers of compensation and
seek redress in the courts?

Further extraction of natural gas from the Marcellus Shale rock formation that lies underneath six northeastern states ( will lead to the construction of new pipelines, or additions to existing pipelines in the same region as the Endless Mountain pipe.
Similarly, as companies exploit significant natural gas deposits located throughout the country (, new pipelines will undoubtedly be required. The fight being waged in northern Pennsylvania is therefore a possible prologue to a nationwide battle over the ability of private companies to use eminent domain to secure routes for
their natural gas pipelines.

Susan Kraham

February 5, 2012 | Permalink | Comments (1) | TrackBack (0)