Friday, March 30, 2012
As regular readers know, we have a fondess for blogging about chickens. Now our friend Prof. Sarah Schindler (Maine) has given us another opportunity with her new article Of Backyard Chickens and Front Yard Gardens: The Conflict between Local Governments and Locavores, forthcoming in the Tulane Law Review, Vol. 87 (2012). The abstract:
Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses.
In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods — food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions — all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.
While the urban agriculture issues are very interesting in their own right, the implications of this article go to the heart of the modern discomfort with the legacy of traditional Euclidean land use regulation. Well worth a read.
Wednesday, February 29, 2012
Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:
In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.
This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.
February 29, 2012 in Affordable Housing, Agriculture, Beaches, Coastal Regulation, Environmental Law, History, Homeowners Associations, Property, Redevelopment, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 1, 2012
From Heidi Gorovitz Robertson at CSU, an announcement for their upcoming symposium:
Cleveland-Marshall College of Law seeks proposals for presentations at Urban Agriculture: It’s Not an Oxymoron, Policies for Cultivating City Land and Increasing Access to Local Food, a symposium on law and policy issues connected to urban agriculture, land use, and the local food movement.
As the movement towards local food continues to grow, cities are finding that they must develop law and policies to allow for and regulate agricultural practices within urban communities. Many cities are implementing policies to increase urban food production through regulation, incentives, and more comprehensive land-use and public-health policies. Cities are doing so because they are recognizing that increasing agricultural land use can be a good answer to declining populations and an excess of abandoned or foreclosed properties. Cities are also recognizing that increasing access to local food can provide economic and public health benefits.
This symposium will explore the laws and policies that cities have implemented to increase local food production and access to local food. It will also address some of the benefits and challenges of implementing these policies. Finally, it will address the need to strengthen the urban, suburban, and rural food connection to move towards more sustainable and reliable local food production. All papers concerning these or related issues are welcome.
The symposium will take place in Cleveland, Ohio on April 20, 2012. C|M|LAW invites academics, practitioners, policymakers, and others to submit presentations or scholarly papers on related topics. A proposal for your paper or presentation, of no more than three pages, should be...submitted via the link below.
For more information about the symposium, please visit C|M|Law’s website.
Jamie Baker Roskie
Monday, January 30, 2012
Walter Russell Mead (Bard College) has posted a fascinating essay at The American Interest called Beyond Blue Part One: The Crisis of the American Dream. An excerpt:
I’ve written in earlier posts about the shift from the first American Dream to the second: from the family farm to the suburban “homestead.” It was a profound change in American life and culture that has not yet been fully explored. The family farm integrated production and consumption, work and leisure, family and business. The family wasn’t just a union of sentiment: it was an element of production. Mom and Dad worked as a team to feed, house and clothe the family, and as the kids grew up they took on greater and greater responsibilities in the common effort. Their lives at home prepared them for the new lives they would lead on their own: the kids would grow up, marry, and start farms.
The 20th century suburban homestead was a very different place.
This is almost exactly the theme of an article I am writing, so naturally I find it interesting! Mead's essay ranges well beyond land use, but his grounding of the "American Dream" in patterns of living and social organization speaks to how incredibly relevant land use models are to the compelling issues facing American society in the 21st Century.
Monday, January 23, 2012
On Morning Edition today, NPR ran a story about farmers who sold land for development repurchasing it for agriculural use. Here's the summary:
Over the past half-century more than 20 million acres of U.S. farmland were transformed into housing developments. With new home construction all but stopped, farmers in many areas are buying or leasing land once slated for development and planting crops on it.
Wednesday, January 18, 2012
We've posted a few items about Cleveland, since it is a great city on that edge of transition; it has undertaken some ambitious programs to deal with abandoned properties as well as to promote urban green uses, as Catherine LaCroix has written about. From inhabitat.com, here's an inspiring photo gallery: Thousands of Vacant Houses Set to Bloom into Urban Gardens in Cleveland, Ohio.
So far Cleveland has flattened 6,400 homes since 2005, and a further 20,000 are on the cards for demolition throughout the County.
Thanks to Autumn Richards for the pointer.
Thursday, January 12, 2012
Proving that he is, indeed, smarter than a fifth grader, comedian Jeff Foxworthy has placed a conservation easement on 1,000 acres of his farm in west Georgia. From the article in the Atlanta Journal-Constitution:
“As someone who grew up in Atlanta and watched it explode, I thought, ‘Wouldn’t it be cool if this could be here forever and nobody could develop it? ‘ ” said Foxworthy in a phone interview today from the property, which is based in Harris County between LaGrange and Columbus, about 100 miles south of downtown Atlanta. “It’s my escape. It’s my farm. I can drive through the gate and not have to be Jeff Foxworthy. Just Jeff.”
The land, which Foxworthy purchased in 2003, was being eyed as a possible golf course, he said. It was originally part of Cason Callaway’s 40,000-acre Blue Springs Farm, which was established as an agricultural experiment in the 1940s to promote better farm practices. The easement allows Foxworthy to maintain private property rights and the ability to live on the land. He also receives a tax break.
Foxworthy has spent most of his comedic career helping folks decide whether or not they were rednecks. It's good to see him putting his success to good use in the land conservation arena.
Jamie Baker Roskie
Friday, December 30, 2011
Rabah Arezki (IMF), Klaus Deininger (World Bank), and Harris Selod (World Bank) have posted What Drives the Global Land Rush? The abstract:
This paper studies the determinants of foreign land acquisition for large-scale agriculture. To do so, gravity models are estimated using data on bilateral investment relationships, together with newly constructed indicators of agro-ecological suitability in areas with low population density as well as land rights security. Results confirm the central role of agro-ecological potential as a pull factor. In contrast to the literature on foreign investment in general, the quality of the business climate is insignificant whereas weak land governance and tenure security for current users make countries more attractive for investors. Implications for policy are discussed.
December 30, 2011 in Agriculture, Comparative Land Use, Contracts, Density, Economic Development, Finance, Globalism, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)
Friday, November 18, 2011
From the Sustainable Communities folks at EPA:
New Partnership for Sustainable Communities Report:
Supporting Sustainable Rural Communities
The HUD-DOT-EPA Partnership for Sustainable Communities and the USDA has
just released Supporting Sustainable Rural Communities, a report that
discusses how the four agencies are collaborating to support rural
communities. This publication highlights how small towns and rural
places across the country are using federal resources to strengthen
their economies, provide better quality of life to residents, and build
on local assets such as traditional main streets, agricultural lands,
and natural resources.
The report includes sections on how HUD, DOT, EPA, and USDA programs
support environmentally and economically sustainable growth in rural
places; performance measures rural communities can use to target their
investments; and 12 case studies of rural communities using federal
resources to achieve their development and economic goals. It also
outlines steps the Partnership for Sustainable Communities is pursuing
to support small towns and rural places.
To read the report, please visit this website.
Jamie Baker Roskie
Thursday, November 3, 2011
Well the title pretty much asks the basic question for all of us, right? Peter D. Burdon (Adelaide) has posted What is Good Land Use? From Rights to Relationship. The abstract:
Industrial agriculture is the dominant method for feeding an increasingly urbanised world. However, a growing body of literature suggests that industrial practices are unsustainable and risk global food security. This article examines the legal-philosophical dimension of this literature and the vision of good land use promoted in both industrial and agrarian farming practices. It argues that industrial agriculture is premised on a concept of private property that promotes individual preference satisfaction, separates people from place and fragments landscape. In response, this article examines agrarian farming practices as a means of re-conceiving private property so that it is seen to embrace not only human good, but also ethics and the land itself. By re-conceiving private property as embracing these factors, private property may offer but one solution to the agricultural crisis.
Friday, October 7, 2011
Anthony B. Schutz (Nebraska) has posted Toward a More Multi-Functional Rural Landscape: Community Approaches to Rural Land Stewardship, forthcoming in the Fordham Environmental Law Journal. The abstract:
This Article how farms and ranches can adapt to meet consumer demand for outdoor activities like hunting, wildlife viewing, hiking, or simply enjoying the solace of spending time in rural places. These places hold breathtaking landscapes, but they are often privately owned, relatively inaccessible to the general public, and have not been managed to produce the ecosystem services that support these activities, despite strong evidence of consumer demand. Historically, farms and ranches have been managed for a single dominant use, undertaken wholly upon an individual’s landholdings. Entering the emerging market for nature-based experiences requires that farms and ranches adapt from fragmented single-use businesses to multi-functional enterprises that cooperatively operate at larger spatial scales.
This Article explains how lawyers can help farmers and ranchers make such a move. It uses existing private law and Ostrom's principles of collective action to illustrate how these communities should be designed. It also offers some preliminary thoughts on possible areas for legal reform that would facilitate the development of these enterprises.
It also explores the relationships these enterprises have with the emerging local-food movement. As with traditional producers, the multi-functionality these institutions bring to individual farmers can be used as a diversification strategy for local-food producers. The income from these activities, in turn, helps stem the environmental consequences of using land for food production. In addition, the communities that may emerge within the foodshed and those that may emerge to support nature-based entrepreneurship are complimentary. Each may foster, and profit from, the sort of communitarian thinking that is necessary to the other, resulting in a more multi-functional and sustainable rural landscape.
Monday, September 19, 2011
Patricia Salkin (Albany), the quintessential "busy bee", has posted Honey, It's All the Buzz: Regulating Neighborhood Bee Hives (B.C. Env. Aff. L. Rev., forthcoming 2011). Here's the abstract:
Urban beekeeping, along with other types of urban agriculture, sustainable development and green building, has generated quite a buzz in recent years. Small-scale beekeeping has proven to be especially popular among people looking to obtain more of their food from local sources and urban bees provide important pollination services to community gardens, home vegetable gardens and fruit trees. Some people also believe that honey contributes to a healthier lifestyle by providing a minimally-processed sweetener and through its various uses as a homeopathic remedy. Small-scale beekeeping may augment local economies too. Despite the benefits and growing popularity of backyard beekeeping, apiaries are not always welcomed by the neighbors. This article is designed to provide information to land use regulators about the benefits and drawbacks of beekeeping in residential areas, and it offers strategies for addressing beekeeping activities through local laws and ordinances.
Wednesday, September 14, 2011
Patricia E. Salkin (Albany) and Amy Lavine (Albany) have posted Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy?, Fordham Environmental Law Journal, Vol. XXII (2011). The abstract:
Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely to start with state and local governments, which can take proactive measures to strengthen their regional foodsheds through a variety of land use planning and regulatory actions. This Article focuses on how existing land use plans and regulations can promote healthier and more sustainable communities through the foodshed movement. In particular, this Article discusses specific land use strategies that can be implemented in urban and suburban settings to facilitate local and regional food production and distribution that go beyond farmland preservation strategies and examine, among other things, smaller-scale community gardens, residential agricultural uses and farmers markets.
Friday, September 2, 2011
Keith H. Hirokawa (Albany) and Charles Gottlieb have posted Sustainable Habitat Restoration: Fish, Farms, and Ecosystem Services. The abstract:
The conversion of estuarine marshes and floodplains to agricultural uses through diking, draining, and filling has left little adequate salmon habitat and, as a result, has been a critical factor in the decline of salmon populations. Current efforts to restore salmon by reestablishing ecosystem functionality. In particular, it has become more common to include dam and dike breaches as feasible solutions. Of course, there is a cost involved in habitat restoration, even if it is not an obvious environmental cost.
This article examines the dialogue on salmon valuation by contrasting the historical view of salmon-as-commodity with insights from "ecosystem services." This emerging trend in ecological economics will play a critical role in justifying restoration projects and formulating sustainability strategies; ecosystem services valuation is showing that investments in natural capital can provide substantial returns. This article also provides a case study of the Smith Island Habitat Restoration Project in Snohomish County, Washington. Smith Island, which was converted to farmland a century ago, exhibits enormous potential value for habitat restoration and begs for an inclusive process that considers the voices for economic, human, and ecosystem well-being. The resolution of the Smith Island controversy provides an insightful example of how a sustainability framework can be useful in showing that restoration strategies can offer substantial benefits to other lands uses and interests.
Friday, August 26, 2011
Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:
The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.
This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.
Monday, May 23, 2011
Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal, published in Planning and Environmental Law, Vol. 65, No. 5, p. 3, May 2011. The abstract:
As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.
May 23, 2011 in Agriculture, Climate, Density, Eminent Domain, Environmentalism, Green Building, Local Government, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 11, 2011
We've posted a few times about the curious topic of urban chickens. The issue really crosses a lot of lines between the public-health origins of zoning; class; sustainability; and modern trends like local food.
Local chickens are being debated in my hometown of Albany. Here is the story from the Times Union: Chickens Join City's Urban Sprawl. Apparently it's up to the Mayor now. The reporter also has a blog post asking for feedback here.
Thanks to Helen Festa for the link. Interestingly, Albany Law's Patricia Salkin mentioned this controversy last week when she was telling me that out of all of her (many!) recent pieces, it is her article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, that has gotten the most SSRN downloads. There must be a lot of passion out there about urban chickens!
Monday, April 25, 2011
Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review. The abstract:
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
A significant paper on drought and the increasingly alarming state of U.S. water resource law.
Wednesday, April 6, 2011
My friends at the Madison-Morgan [Georgia] Conservancy have just published and posted the Farmeander Map. This is a cool driving tour tool for visiting agritourism sites (including organic farms, berry and flower farms, and natural meat operations) in Morgan County, along with fun places to stay and a schedule of festivals throughout the year.
For many smaller agriculture operations in Georgia, agritourism is critical for economic viability. It also helps we city-dwellers create and maintain relationships with the folks who produce our food. While "Fameander" is a new (and trademarked) term, there are many agritourism programs around the country, including "Farmer for a Day." So, wherever you are, consider "farmeandering" around to find out what's what with your local food supply.
Jamie Baker Roskie
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)