Friday, December 30, 2011

Wolf on the Supreme Court and the Environment

51hoJRabZCL._SL500_AA300_Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012).  Here's the Amazon blurb:

Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.

And for a preview, Prof. Wolf has posted the introduction on SSRN.  The abstract:

This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.

What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.

 Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.

Matt Festa

December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2011

Call for Articles for Zoning and Planning Law Handbook--Salkin

Patricia Salkin sends the following announcement that should be of interest to anyone who has published in the field this year:

Albany Law School Associate Dean Patricia Salkin is once again preparing for the annual Zoning and Planning Law Handbook. This publication highlights 18 law review articles published in 2011 that would be of significant interest to land use practitioners. The bibliography she has put together of articles lists about 140 publications so far. If you would like to have one or more of your articles considered for publication, please send the article name and citation to Patty Salkin at psalk@albanylaw.edu to make sure it is included in the bibliography and considered for publication.

Land use is an especially great field because of the interaction and synergy between the academics and the professionals--the Handbook is a terrific opportunity to publish to a wider audience.

Matt Festa

November 15, 2011 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 30, 2011

Lastowka on Penalver & Katyal's Property Outlaws

Greg Lastowka (Rutgers-Camden) has posted Property Outlaws, Rebel Mythologies, and Social Bandits, Cornell Journal of Law and Public Policy, Vol. 20, p. 377, 2010, reviewing Eduardo Peñalver and Sonia Katyal's book, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale Univ. Press 2009).

Lastowka notes that he agrees with much of the authors' analysis, and highlights a few areas of disagreement: (1) he suggests that the popular image of outlaws in society is actually not all that bad; (2) there are a great many outlaws who are "bad" and don't offer any socially useful outcomes; (3) whenever redistributionist outlawry is necessary, that is the sign of a failed state, and therefore should not necessarily be celebrated; (4) while property disobedience can be heroic for the information value it communicates, it likewise should not be necessary unless there is a breakdown in functioning democratic society.

[Note that the above synopis is mine and not the author's, since the review essay didn't include an abstract].

Matt Festa

October 30, 2011 in Books, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 25, 2011

Bicycle Diaries

At our house we just finished reading Bicycle Diaries by David Byrne (Penguin Group 2009).  Byrne, who most know as the lead singer for the rock band Talking Heads, is also an author, conceptual artist, and bike rack designer.  Here's the fly-leaf copy for the book:

Since the early 1980s, David has been riding a bike as his principal means of transportation in New York City. Two decades ago, he discovered folding bikes and started taking them with him when travelling around the world. DB's choice was initially made out of convenience rather than political motivation, but the more cities he saw from his bicycle, the more he became hooked on this mode of transport and the sense of liberation, exhilaration, and connection it provided. This point of view, from his bike seat, became his panoramic window on urban life, a magical way of opening one’s eyes to the inner workings and rhythms of a city’s geography and population.

Bicycle Diaries chronicles David’s observations and insights — what he is seeing, whom he is meeting, what he is thinking about — as he pedals through and engages with some of the world’s major cities. In places like Buenos Aires, Istanbul, San Francisco, and London, the focus is more on the musicians and artists he encounters. Politics comes to the fore in cities like Berlin and Manila, while chapters on New York City, and on the landscaped suburban industrial parks and contemporary ruins of such spots as Detroit, Pittsburgh, and Columbus are more concerned with history in the urban landscape. Along the way, DB has thoughts to share about fashion, architecture, cultural isolation, globalization, and the radical new ways that some cities, like his home town, are becoming more bike-friendly — all conveyed with a highly personal mix of humor, curiosity, and humanity.

Byrne seems remarkable well versed in urban planning - he's a big fan of Jane Jacobs, for example - and he provides many unique insights into transportation policy and city life.  I'm thinking of adding this book to my students' optional reading list.

Jamie Baker Roskie

PS Yes, I realize this is my second rock-band-related post in a row.  Maybe we need a new subject category?

September 25, 2011 in Books, Comparative Land Use, New York, Planning, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 24, 2011

Conference to Commemorate 40th Anniversary of "The Quiet Revolution in Land Use Control"

The John Marshall Law School will be hosting a conference on its Chicago campus on September 20, 2011, to commemorate the 40th anniversary of publication of The Quiet Revolution in Land Use Control.  The book’s two original authors, Fred Bosselman and David Callies, will speak at the event, along with Daniel Mandelker, Patricia Salkin, and other prominent scholars.  Here are some excerpts from a news release posted at the law school’s website:

The Kratovil Quiet Revolution Conference will begin with an analysis of the impact of The Quiet Revolution in Land Use Control, a book that discussed the shift from local to regional planning, has had on our nation and land use policy. National speakers representing the states involved in The Quiet Revolution in Land Use Control will analyze how The Quiet Revolution unfolded in these jurisdictions. The afternoon will then analyze the future of land use policy and how this national issue will play out around the country…

…This national debate started with two scholars in Chicago, so it is a fitting site for a reexamination of this 40-year-old national debate and the legislation it produced. In 1971, the president's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states around the nation which returned the control of land use to a state or regional level, largely at the expense of local zoning. This was the "ancient regime" being overthrown. This constituted the "quiet revolution." Immensely influential (several thousand copies were purchased and distributed) in stimulating creative thinking by planners, lawyers, and public officials to solve difficult land use planning issues, the book also quickly became a fixture of courses in many university planning and law programs, as well as a handbook and sourcebook for state and local officials. Dozens of articles have been written about it, some recently. It remains a reading source in many courses taught today.

Troy Rule

May 24, 2011 in Books, Chicago, Conferences, Environmentalism, History, Local Government, Planning, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 20, 2011

Law and the Human Factor

I just received the Spring newsletter of the Association for Contemplative Mind in Higher Education. This issue has a thoughtful essay by Ajay Rastogi, an environmental educator from India.  An excerpt:

I work in the area of nature conservation, sustainable agriculture, community-based enterprises and fair-trade in India and neighboring Himalayan countries. Over twenty years ago when many of my friends and I finished our university degrees in environmental sciences, we joined different organizations to contribute our efforts to saving the environment. Most of us and our colleagues at work carried a strong conviction that conservation could be achieved by improving knowledge and awareness. We worked with considerable passion and commitment, across different sectors of society, to try and bridge the gaps in people's understanding, providing information about “why” and “how” to protect the environment and conserve nature.

The result was that more books and films were produced, and more travel and workshops were planned, as these were considered the means toward our ends.

Some of these efforts may have contributed to a success story here and there, but it appeared to me that conservation education remained in the same domain as cognitive learning, and that it often failed to transform people to translate into action. To an extent, environmental education turned out to be part of the same educational riddle that lies at the root of the sustainability question. How can environmental education help not only make people aware, but motivate them to take the actual steps in their personal and community life that reflect their commitment as the stewards of natural ecosystems?

I began to realize that we need a paradigm shift in our approach to environmental education. I also began to feel that at deeper levels, environmental concerns are in many ways akin to other important societal concerns such as violence, hunger, drugs and corruption. None of these can be addressed through scientific, technological and policy solutions alone or just by enhancing knowledge, awareness or income levels. To maintain ecosystems, conserve biodiversity and keep the earth elements healthy (soil, water, air), nothing less than a radical change in human behavior is required.

How does one bring about behavioral transformation? I began to search for approaches. I located a master’s course in Applied Ethics and left my job in the Food and Agriculture Organization of the United Nations to study. The ethical and moral theories presented in the courses made strong arguments that appealed to the rational mind, but still could not penetrate through to the deeper layers of beliefs and thought processes that affect changes in behavior. Appeals to value systems have limitations in promoting the attitudinal changes that would result in more sustainable living. Ethical discourse is often just a piece of good conversation. Most people will only make adjustments in their lifestyle for things that they really care about!

Rastogi is not the only scholar considering how the human element plays a role in policy-making and problem solving.  I'm also reading David Brooks' new book The Social Animal: The Hidden Sources of Love, Character, and Achievement.  Brooks' inspiration for the book was his insight that the human equation is being left out of policymaking.  Here's an excerpt from a piece on NPR:

In Washington, D.C., which Brooks calls "the most emotionally avoidant city on Earth," Brooks notes that decisions are made based on the assumption that people are cold, rationalistic individuals who respond to incentives. Those assumptions didn't quite match what the research in other fields began to illustrate, however.

"Scientists, philosophers and others were developing a more accurate view of human nature, which is that emotion is more important than reason, that we're not individuals — we're deeply interconnected," Brooks says. "And most importantly ... most of our thinking happens below the level of awareness."...

Instead of relying on rational decisions, Brooks says, people tend to be influenced by their underlying, unconscious emotional state, which is in turn influenced by the social relationships surrounding them. For example, Brooks has covered education reform for 20 years and writes that he has seen little improvement from multitudinous policy changes.

"The reality of education is that people learn from people they love. But if you mention the word love at a congressional hearing, they look at you like you're Oprah," he says.

I feel like people often look at me like I'm Oprah.  Each semester I try to teach  my students about emotional intelligence, underlying values, and even mindfulness - non-rational aspects of the human experience that have a profound impact on decision and policy making.  Even the students who are grateful to learn about this are, at the same time, skeptical and worried about surfacing all this squishy stuff in the "emotionally avoidant" world of the law school and lawyering.

It's something I'm thinking a lot about as I prepare for our panel discussion on teaching about values at the upcoming "Practically Grounded" conference - how do we engage in best practices of law teaching, which (to me) includes tackling the range of human emotions and experience, while helping our students feel safe and sane?

Jamie Baker Roskie

April 20, 2011 in Books, Environmentalism, Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, March 10, 2011

Salkin and Nolon on Sustainable Development and Climate Change for Planners and Attorneys

Patricia Salkin (Albany) and John Nolon (Pace) have posted Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, published in Planning and Environmental Law, Vol. 63, p. 3, March 2011.  The abstract:

This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.

The book, Climate Change and Sustainable Development Law in a Nutshell, is really helpful for lawyers, planners, and students in getting an orientation to this very hot topic.  The article provides some great examples and pushes us to think about the federal/state/local/sublocal legal divides that land users have to face. 

Matt Festa

March 10, 2011 in Books, Clean Energy, Climate, Development, Environmentalism, Federal Government, Green Building, Local Government, Planning, Property, Scholarship, Smart Growth, State Government, Sustainability, Transportation, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, February 27, 2011

Tribes, Land, and the Environment

I just returned from a stimulating one-day conference at American University's Washington College of Law called Tribes, Land, and the Environment. Organized by Ezra Rosser and Sarah Krakoff,  it was a great mix of speakers on Indian law generally and environmental issues affecting/involving tribes significantly. Land use gets even more complicated when we add tribes to the mix and need to address the special issues of working with sovereign entities and federal law. I presented some of the initial findings of a larger study I am undertaking on how tribes use conservation easements. Specifically, I was examining instances where tribes hold conservation easements over land off-reservation. Much like other governments [as I have written about here], tribes use conservation easements to protect areas and ecological amenities outside their jurisdictions. I have been particularly intrigued by (1) whether tribes need to adhere to state law when entering into such agreements and (2) considering how the use of conservation easements interacts with tribes' views of property and the natural world. Intriguing stuff. If you see any examples of tribal holders in your necks of the woods, please let me know!

Many of the presentations at the conference, will appear in an edited volume of the same name.

- Jessica Owley

February 27, 2011 in Books, Conferences, Conservation Easements, Environmental Justice, Environmental Law, Federal Government, Local Government, Property, Property Rights, Property Theory, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 16, 2011

Garnett on Mixed Land-Use Urban Neighborhoods

Nicole Garnett (Notre Dame) has added to her extensive body of work on land use, order, and quality of life in America's cities (read her book Ordering the City) by posting The People Paradox on SSRN.  Here's the abstract:

American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

Jim K.

February 16, 2011 in Books, Community Design, Comprehensive Plans, Crime, Density, Form-Based Codes, Housing, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism, Zoning | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 2, 2011

Graffiti as Art

A fascinating new book is available from Taschen, the publishers of fancy schmancy artsy books. 

Trespass. A History of Uncommissioned Urban Art. This book is about more than just graffiti, it also includes performances, protests, and urban reclamation. The Chapter on Environmental Reclamations may be of particular interest to land use and property professors. These ephemeral works of art are great conversation starters for topics such as who decides what communities look like, the role of art and protest in landscape design, and how we interact with urban settings.

- Jessica Owley

 

February 2, 2011 in Aesthetic Regulation, Books | Permalink | Comments (0) | TrackBack (0)

Monday, January 17, 2011

Capers on Suk on the Home

I. Bennett Capers (Hofstra) has posted Home Is Where the Crime Is, Michigan Law Review, vol. 109 (2011).  Capers reviews Jeannie Suk's recent book At Home in the Law.  The abstract:

There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”

What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lenses to reveal a larger, more troubling picture.

The review--as well as Suk's prizewinning book--doesn't focus on land use per se as much as family law, domestic violence, and privacy.  But as we all know, the concept of the home plays a huge role in the law and politics of land use, and both of these works reflect some very siginificant thinking about the meaning of the home in American culture and law.

Matt Festa

January 17, 2011 in Books, Housing, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

Inclusionary Housing in International Perspective

 The Lincoln Institute of Land Policy has recently released Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion and Land Value Recapture, edited by Nico Calavita (Planning-San Diego State) and Alan Mallach (Brookings).  After 60 pages on the U.S., the book devotes a chapter each to Canada, England, Ireland, France, Spain and Italy.  The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa.

Jim K.

James J. Kelly, Jr.

Visiting Prof. of Law, W&L

kellyj@wlu.edu

January 10, 2011 in Affordable Housing, Books, Comparative Land Use, Development, Inclusionary Zoning, Local Government, Planning, Smart Growth, Suburbs, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, January 9, 2011

Rosenbloom on Incentivizing Sustainable Businesses

Jonathan D. Rosenbloom (Drake) has posted Government Entrepreneurs: Incentivizing Sustainable Businesses as Part of Local Economic Development Strategies In Greening Local Government, published in GREENING LOCAL GOVERNMENT, Patty Salkin and Keith Hirokawa, eds., 2011.  The abstract:

This chapter (which will be included in the forthcoming Greening Local Government book edited by Patty Salkin and Keith Hirokawa) considers economic development strategies that capitalize on an emerging socially responsible and environmentally friendly economy.

Local economic development strategies used to attract private sector investment have remained almost the same for the past forty years. The private sector itself, however, is changing. There is a small, but rapidly growing, segment that has re-conceptualized the purpose of a for-profit business. An emerging portion of the private sector generates profit, value and marketability in fostering sustainable business strategies, focusing equally on economic profitability, environmental friendliness and socially responsibility.

In light of this evolution in the private sector, should local governments redesign economic development strategies to leverage the growth in sustainable businesses? The chapter concludes with steps local governments may take to directly incentivize sustainable businesses by increasing the sustainability of the incentives themselves, including a performance-based economic development strategy; and to indirectly encourage the development of sustainable businesses by helping to facilitate a market for their products.

This chapter does not present sustainable economic development strategies as a single option or as a blanket panacea. Rather, by implementing economic development strategies to accommodate and promote sustainable businesses, local governments enhance their sustainability and diversify their tax base. A welcoming business framework is crucial in driving interest and investments in sustainability to the mutual benefit of local governments and the private sector. As local governments look to support sustainable businesses, they will have a positive impact on communities, economic development and the environment in a sustainable and lasting manner.

Matt Festa

January 9, 2011 in Books, Climate, Economic Development, Environmentalism, Green Building, Local Government, Property, Scholarship, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)

Saturday, January 8, 2011

Housing and Community Development, 4th ed.

Carolina Academic Press has just released the 4th edition of Housing and Community Development: Cases and Materials (Amazon has a substantial preview). Barbara Bezdek (Maryland) has joined the already prominent list of eight community development and law professor editors.  The first revision in more than eleven years clearly bears the imprint of Barbara’s hard work.  New excerpted material puts the very timely topic of revitalization front and center and includes post-Kelo redevelopment, vacant building receivership (full disclosure, this one’s mine), tenants of foreclosure propertiesPeñalver and Katyal on Property Outlaws.   

 Jim K.

January 8, 2011 in Affordable Housing, Books, Community Economic Development, Development, Economic Development, Eminent Domain, Federal Government, Financial Crisis, Housing, Planning, Property, Property Rights, Race, Redevelopment, Sustainability, Takings | Permalink | Comments (0) | TrackBack (0)

Van Erp on European Property Law

Sjef J. H. M. Van Erp (Maastricht University) has posted European Property Law: A Methodology for the Future, from EUROPEAN PRIVATE LAW - CURRENT STATUS AND PERSPECTIVES, Schulze/Schulte-Nölke, eds., Sellier European Law Publishers, Munich, Forthcoming.  The abstract:

In this contribution to a collection of essays it is attempted to answer the question what the future of European property law could be. Based upon a more general analysis of the foundations of the property law traditions in Europe some examples are given to show that, although at a fairly abstract level the various traditions indeed share a common foundation, the laws of the Member States nevertheless differ considerably on a more concrete, technical level. A further problem are developments such as the creation of "virtual" property, which force us to critcially rethink traditional property law.The final conclusion is that there is a future for European property law, especially if we follow a functionalist-pragmatic approach as can be seen in ECJ case law, but that we should move with great care and take our time for reflection. We should avoid that European model law, such as the DCFR, becomes an initiative that practising lawyers do not really care about.

Matt Festa

January 8, 2011 in Books, Comparative Land Use, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 28, 2010

Rockefeller Center and Big Development Projects

I just saw a CNBC documentary on The Rockefellers.  It was well done (not sure when it was originally made).  One segment that I found very interesting from a land use perspective was the story of the development of Rockefeller Center in NYC-- you know, famous for the Christmas tree, the skating rink, Radio City, and the place where Alec Baldwin and Tina Fey hang out at 30 Rock (coincidentally, I thought that the middle-aged Nelson Rockefeller had an uncanny resemblance to Alec Baldwin).  

The gist of the narrative is that John Rockefeller Jr. bought the land--several blocks of midtown Manhattan--from Columbia intending to redevelop it as a new home for the Metropolitan Opera.  Then the Great Depression hit.  Unable get traditional investors and real estate financing, Junior took the bold move of deciding to go ahead and build.  He commissioned an ambitious plan for developing several blocks with buildings, theaters, the plaza, and the 70-story skyscraper.  Rockefeller paid for most of it himself up front, and put thousands to work.

You can read more about it in Daniel Okrent's book Great Fortune: The Epic of Rockefeller Center.

One thing it made me think about is the feasibility of large-scale redevelopment projects.  The story seemed to be that Rockefeller Center was a big risk, but paid great rewards (both financially to its owners, and culturally to the city).  But the current political mood seems to disfavor large-scale redevelopment.  The high-profile failures of places like Poletown and even New London seem to caution ambitious planners away from undertaking too-ambitious plans for fear they might fail, and this is leading to some of the criticism of planned projects like Atlantic Yards.  

One way to look at it is that the history of real estate development (as well as business generally) is probably replete with more failures than successes, so perhaps it isn't fair to judge all future projects by anecdotal examples of recent failures.  There's also context: while one of the academics in the CNBC documentary described Rockefeller Center as "the biggest development project since the great pyramids," it was still just a few blocks of New York City, so as large as it was it probably wouldn't have singlehandedly sunk the fortunes of Gotham had it failed--where as a place like New London has much more at stake in a major economic development project.  There's also the issue government involvement.  While I don't know the full story of Rockefeller Center (I'll have to read Okrent's book!), it seems as though it was principally planned, organized, and paid for by private actors.  The modern trend toward more government involvement may be necessary to execute a massive project given the regulatory issues and the need for eminent domain for land assembly.  The question is whether governmental involvement comes with a price-- complicating the project politically, legally, and financially, and putting the public fisc at risk if the project tanks.  

I know there are a million variables that influence why some projects succeed and others fail, and I don't have a scientific theory on the matter.  It would be interesting, though, to compare modern and historical large-scale development projects and to account for historical failures as well as the successes that we can remember so much more easily.

Matt Festa

December 28, 2010 in Architecture, Books, Development, History, Local Government, New York, Planning, Politics, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, December 20, 2010

Iglesias on State & Local Regulation of Affordable Housing

Tim Iglesias (San Fransisco) sends word that he has posted State and Local Regulation of Particular Types of Affordable Housing, forthcoming in The Legal Guide to Affordable Housing Development, Tim Iglesias & Rochelle E. Lento, eds. (American Bar Ass'n 2011).  The abstract:

This chapter is part of "The Legal Guide to Affordable Housing Development", a practical guidebook covering most important areas of law that apply to affordable housing development. This chapter analyzes a wide variety of state and local regulation affecting the development of several types of affordable housing which are neither traditional single family nor multi-family. Specifically, the chapter discusses statutes, ordinances, regulations and leading case law concerning the siting of manufactured housing (Section II), farmworker housing (Section III), accessory or secondary units (Section IV), single room occupancy hotels (SROs) (Section V), condominium conversion regulation (Section VI), and emergency shelters and transitional housing, including domestic violence shelters (Section VII).

Sounds like a very helpful overview of the crucial state and local government role in affordable housing.  The book looks like a great resource; Prof. Iglesias indicates that it will be out in May 2011 at the annual conference of the ABA Forum on Housing and Community Development Law in D.C.  

Matt Festa

December 20, 2010 in Affordable Housing, Books, Community Economic Development, Conferences, Development, Housing, Local Government, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 14, 2010

New Book on Teaching Property Law & Race from Brophy, Lopez, and Murray

In the mail this morning, I received a copy of Integrating Spaces: Property Law & Race (Aspen, 2011), Integrating Spaces by Alfred Brophy (North Carolina), Alberto Lopez (Northern Kentucky), and Kali Murray (Marquette).  Here is the description:

Integrating Spaces: Property Law and Race enables you to seamlessly integrate historical and contemporary issues of race and ethnicity into your Property syllabus alongside your casebook. With historical perspective and doctrinal analysis, it maps the directions in which property law has turned in response to issues of race and ethnicity, and demonstrates how racial and ethnic categories continue to affect contemporary property law.

Integrating Spaces: Property Law and Race provides a dynamic social, historical, and doctrinal context for teaching property law:

  • nearly 30 new and provocative cases—including the Supreme Court decision in Oyama v. California (alien land laws) and state court and federal court decisions in Trueheart v. Parker and Morison v. Rawlinson (race nuisance cases involving a jazz club and an African American church)
  • extensive treatment of Federal civil rights statutes and their implications for environmental justice and the housing and financial crisis
  • a close look at the efficacy of traditional property concepts as solutions to minority or cultural requirements—such as easements by prescription for Native American religious uses (United States v. Platt), Native Hawaiian access to sacred sites and beaches ( PASH), and the impact of partition land sales on African-American farmers and indigenous communities
  • consideration of an international perspective, including cases on land redistribution in South Africa, cultural property in Australia, and restitution in post-conflict Bosnia and Herzegovina and Guatemala
  • legal context and appropriate pedagogy from statutes, excerpted law review articles, and questions for discussion in the notes
  • Teacher's Manual that provides additional questions and suggestions for linking the cases to coverage in traditional casebooks

Timely and relevant, Integrating Spaces: Property Law and Race brings a whole new dimension to your Property course. If you’re looking to refresh your teaching experience, challenge your students, or fuel class discussion, order a complimentary copy of Integrating Spaces: Property Law and Race.

A terrific resource!

Matt Festa

December 14, 2010 in Books, Property, Race, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 8, 2010

Epstein on Property Rights in Land and Water

Richard A. Epstein (NYU, Chicago, and Stanford--Hoover Institution) has posted Playing by Different Rules? Property Rights in Land and Water, from EVOLUTION OF PROPERTY RIGHTS RELATED TO LAND AND NATURAL RESOURCES, Lincoln Institute, 2010.  The abstract:

This article examines both the similarities and differences between the law of land and water in both a private law and constitutional law setting. The first critical difference is that the nature of the two resources differs enough such that exclusive rights for occupation usually sets the right framework for analyzing land use disputes, while a system of shared, correlative duties work best for water. Once these baselines are established, it follows that an accurate rendition of the constitutional law issues necessarily rests on the proper articulation of private law rules of adjudication. Unless those efficient private rules are used as a baseline for constitutional adjudication, it becomes impossible to explain which government actions result simply in a "mere" loss of economic value and which government actions generate losses that require compensation. Parties can engage in wasteful political arbitrage without limitation.

In dealing with the private law issues, the first step is to develop principles of parity between private claimants, to the extent that this approach is physically possible. The second step then picks the set of rules that maximizes the overall utility of all parties concerned, subject to the parity constraint. This system must yield to reasonableness considerations when the conditions of physical parity cannot be satisfied, which covers all cases of dispute between upper and lower owners of land, as well as upstream and downstream riparians. In both these settings, the objective is to create, whenever possible, rules that treat the last element of loss to one party equal to the last element of gain of the next.

Using these natural law baselines produces by and large efficient results in private disputes. The rejection of these rules in the takings context in both land and water cases yields the opposite result, by conceding far too much power to state authorities in both land and water cases. It is no mistake that the modern law of regulatory takings for land, as developed in the 1978 Penn Central case, explicitly rests on the same intellectual confusions about property rights and economic losses that underlie the 1944 Willow River case, dealing with water rights. The only rationalization of both areas of law requires that the constitutional protection of private property start with the definitions of private property that have worked so well in practice under the natural law traditions of private law.

Matt Festa

December 8, 2010 in Books, Constitutional Law, Eminent Domain, Property Rights, Property Theory, Scholarship, Servitudes, Takings, Water | Permalink | Comments (0) | TrackBack (0)

The 2010 Land Use Bibliography--get on the list!

Patricia Salkin will publish a bibliography of all land use articles from 2010 in the Zoning and Planning Law Handbook for 2011:

Professor Patricia Salkin is preparing a comprehensive bibliography of all land use law law review/law journal articles published in 2010.  The articles for inclusion in the 2011 Zoning and Planning Law Handbook will come from this list, and the complete bibliography will also be in the volume.  She asks that you not be left out.  If you have a published piece with a 2010 date and you do not see it listed in the attached document, please email the citation to Professor Salkin.  If you are in page proofs of an article that will be published with a 2010 date, please send that as well, otherwise it will be missed.  The current list consists of articles complied from a Westlaw search.

This is a great service for all of us, so help her out, and make sure you get credit for your work!  You can click below to expand this blog entry, where I've pasted the draft list, and scroll down to make sure you're not being left out!  Or, you should be able to open the .pdf file here: Download Prof Salkin 2010 LU Bilbiography draft

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December 8, 2010 in Books, Scholarship | Permalink | Comments (1) | TrackBack (0)