Saturday, June 15, 2013
Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013). (Who says Zoning can't go Ivy?!?) Matt notified us when the piece first was uploaded. Here's the abstract for the finished piece:
In any given metropolitan region,
scores of municipalities are locked in a zero-sum struggle for mobile sources
of jobs and tax revenue. This competition appears to benefit small, homogeneous
suburbs that can directly enact the uniform will of the electorate over large,
diverse cities that are often ensnarled in conflict between competing interest
groups. Cities can level the playing field with suburbs, however, by devolving
municipal power to smaller, more homogeneous subgroups, such as neighborhoods.
Indeed, many commentators have identified one such effort at neighborhood
empowerment, the “business improvement district” (BID), as a key factor in the
recent revitalization of many cities. The BID and the related “special
assessment district” devolve the financing of infrastructure and services to
landowners within a territorially designated area. Courts have widely upheld
BIDs and special assessment districts against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.
Friday, June 14, 2013
Land use law scholars and other academics continue to rediscover the neighborhood as a terrific lens through which to view a number of issues. I thought I’d profile three recent works (hubris alert: one of them is admittedly mine) in this post.
The first is Robert J. Sampson’s (Harvard) book Great American City: Chicago and the Enduring Neighborhood Effect. From the press release:
For over fifty years numerous public intellectuals and social theorists have insisted that community is dead. Some would have us believe that we act solely as individuals choosing our own fates regardless of our surroundings, while other theories place us at the mercy of global forces beyond our control. These two perspectives dominate contemporary views of society, but by rejecting the importance of place they are both deeply flawed. Based on one of the most ambitious studies in the history of social science, Great American City argues that communities still matter because life is decisively shaped by where you live.
To demonstrate the powerfully enduring impact of place, Robert J. Sampson presents here the fruits of over a decade’s research in Chicago combined with his own unique personal observations about life in the city, from Cabrini Green to Trump Tower and Millennium Park to the Robert Taylor Homes. He discovers that neighborhoods influence a remarkably wide variety of social phenomena, including crime, health, civic engagement, home foreclosures, teen births, altruism, leadership networks, and immigration. Even national crises cannot halt the impact of place, Sampson finds, as he analyzes the consequences of the Great Recession and its aftermath, bringing his magisterial study up to the fall of 2010.
Following in the influential tradition of the Chicago School of urban studies but updated for the twenty-first century, Great American City is at once a landmark research project, a commanding argument for a new theory of social life, and the story of an iconic city.
The second is another book just published by Carol M. Rose (Arizona) and Richard R. W. Brooks (Yale) entitled Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms. From the press release:
Saving the Neighborhood tells the charged, still controversial story of the rise and fall of racially restrictive covenants in America, and offers rare insight into the ways legal and social norms reinforce one another, acting with pernicious efficacy to codify and perpetuate intolerance.
The early 1900s saw an unprecedented migration of African Americans leaving the rural South in search of better work and equal citizenship. In reaction, many white communities instituted property agreements—covenants—designed to limit ownership and residency according to race. Restrictive covenants quickly became a powerful legal guarantor of segregation, their authority facing serious challenge only in 1948, when the Supreme Court declared them legally unenforceable in Shelley v. Kraemer. Although the ruling was a shock to courts that had upheld covenants for decades, it failed to end their influence. In this incisive study, Richard Brooks and Carol Rose unpack why.
At root, covenants were social signals. Their greatest use lay in reassuring the white residents that they shared the same goal, while sending a warning to would-be minority entrants: keep out. The authors uncover how loosely knit urban and suburban communities, fearing ethnic mixing or even “tipping,” were fair game to a new class of entrepreneurs who catered to their fears while exacerbating the message encoded in covenants: that black residents threatened white property values. Legal racial covenants expressed and bestowed an aura of legitimacy upon the wish of many white neighborhoods to exclude minorities. Sadly for American race relations, their legacy still lingers.
Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a "sense of place" are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto "legal neighborhood." This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment's social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.
It seems to me that the neighborhood is reemerging as an increasingly popular topic in both law and the social sciences, just as it did at the turn of the last century. Perhaps there is a conference in the midst of this renewed interest, just waiting to come to the fore.
Stephen R. Miller
Tuesday, June 11, 2013
Carol Zeiner (St. Thomas) has posted A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold, forthcoming in the Utah Law Review (2013). The abstract:
Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.
I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation.
That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people.
Any such conclusion demands reexamination on theoretical grounds, which is done in this Article. In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion.
Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been. The abstract:
The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.
It's time once again for the "Professors' Corner" teleconference sponsored by the ABA's Real Property, Trusts, & Estates section. This month's call features different recent cases to be discussed by John Orth (North Carolina), Tanya Marsh (Wake Forest), and yours truly (South Texas). See the writeup below for details on the call-in and the cases. Also, if you're a property or land use prof who might be interested in participating in future calls (I recommend it), get in touch with Tanya.
Professors’ Corner: Wednesday, June 12, 2013
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, June 12, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners. Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.
John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series. Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death. Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety. Here’s a link to Reicherter: http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf
And to Callaghan: http://www.flprobatelitigation.com/uploads/file/4D11-631_op.pdf
Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section. She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions. Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf
Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog. Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline. Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf
Monday, June 10, 2013
Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013). The abstract:
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
This looks really interesting. Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country. These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing.
June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)
This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.
The Rockefeller Foundation announced last week a $100 million effort to build resilience in 100 cities around the world. The project sounds really interesting and is accepting applications from cities wanting to participate now. Learn more here and here. From the press release:
Rooted in a century of investing in innovation, and as a leader in the growing field of resilience, today The Rockefeller Foundation announced a $100 million commitment to build urban resilience in cities around the world. The Foundation's 100 Resilient Cities Centennial Challenge will select one hundred cities across the globe, and through technical support and resources for developing and implementing plans for urban resilience, the Foundation will help cities leverage billions of additional dollars in infrastructure financing.
As natural and man-made shocks and stresses grow in frequency, impact and scale, with the ability to ripple across systems and geographies, cities are largely unprepared to respond to, withstand, and bounce back from disasters. The greatest burden of these events, such as the impacts of climate change or public health threats, often falls on vulnerable people who have fewer means to cope with them and who take longer to recover, disrupting livelihoods and increasing inequality. Therefore, there is an urgent need to focus on resilience, not only to better prepare for the next disaster, but to improve the well-being of the poor or vulnerable people throughout the world.
. . .
Through the 100 Resilient Cities Centennial Challenge, The Rockefeller Foundation is inviting cities from around the world to apply to be named one of 100 resilient cities. Applicants, which can be city government officials or major institutions within a city, will be asked to present a clear description of how their city is approaching and planning to build greater resilience at city-scale and in a way that addresses the needs of the poor or vulnerable. Winners will be announced in three rounds over the next three years, with the final round of winners named in 2015.
Each winning city will receive three forms of support:
Support to create a resilience plan, along with the tools, technical support, and resources for implementation. The Rockefeller Foundation will deploy its expertise in innovative finance to help cities leverage billions of dollars of potential private sector financial support, as well as public dollars, to realize their plans.
Membership in a new network The Rockefeller Foundation is creating, the 100 Resilient Cities Network, which will provide support to member cities and share new knowledge and resilience best practices.
Support to hire a Chief Resilience Officer (CRO). The creation of this innovative new role is an innovation that will ensure resilience-building and coordination is the specific responsibility of one person in a city government. The CROs can also oversee the development of a resilience strategy for the city and be part of a learning network of other CROs as representatives to the 100 Resilient Cities Network.
Seems like a great project!
Stephen R. Miller
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