Monday, July 23, 2012
Check out this interesting article and fascinating slide show on Olympic Villages over the years. As Matt always tells us, everything can be a land use issue and the Olympics are no exception. Many buildings and facilities are erected for each Olympics, and one necessary element is a place to house all the visiting athletes. This slide show of what the housing as looked like over the year (and in some cases what those properties look like still today).
Saturday, July 21, 2012
In a study of two U.S. cities, researchers found that land use was a strong determinant of water use patterns.
Land-use, temperature, and single-family residential water use patterns in Portland, Oregon and Phoenix, Arizona by Betsy Breyer, Heejun Chang, G. Hossein Parandvash
Applied Geography, Volume 35, Issues 1–2 (2012) ($)
Adaptation to climate change requires urban water providers to develop a complex understanding of how temperature affects water use patterns. We used a geographic information system and statistical analysis to compare the spatial relationships among single-family residential water use patterns, land use characteristics, and temperature in Portland, Oregon and Phoenix, Arizona. We developed mean water use patterns at the census block group level using data from 2002 to 2009 in Portland and from 2000 to 2008 in Phoenix. These mean values were used to estimate the localized temperature sensitivity of water use in each census block group through an ordinary least squares regression with summer average air temperature. Taking the slopes of regression estimates as our dependent variable, we examined spatial relationships among temperature-sensitive water use patterns, housing density, impervious surfaces, low vegetation, and tree canopy extent. Temperature sensitive water use was found to be positively correlated with low vegetation and negatively correlated with impervious surfaces in both cities. Tree canopy coverage tends to increase with sensitivity in Portland, while the reverse relationship is found for Phoenix. Regression analysis indicates that building density explained the most variation in the dependent variable in Portland whereas, in Phoenix, the strongest correlations related to vegetation patterns. A comparative approach highlights the complex, localized correlations that exist among local climate regimes, urban landscapes, and water use patterns. Census block group-level water use analyses equips water providers with detailed information on the sensitivity of local water use to temperature variation, which could prove valuable to developing a viable municipal climate change adaptation strategy.
Thursday, July 19, 2012
I am very excited for the opportunity to blog on the Land Use Prof Blog over the next month. Thanks to Matt Festa and the other editors for inviting me to do so. As Matt mentioned in his introduction, I am a Research Fellow at NYU's Furman Center for Real Estate and Urban Policy. For those not familiar with the Center, we are a joint endeavor of NYU's law and public policy school and we conduct interdisciplinary legal and empirical research on land use, affordable housing, housing finance, neighborhood change, and a host of other urban issues. Although we particularly focus on issues in New York City, we are increasingly pursuing projects in other cities and working on national affordable housing and urban policy issues.
My plan during the next month is to talk about a few interesting projects I am pursuing with the Furman Center, a few of my personal research projects, and of course to write about new land use issues.
For this first post, I thought I would discuss one of the big land use issues on our radar here in New York, Mayor Bloomberg's recent proposal to rezone a significant part of East Midtown Manhattan, in the area around Grand Central Terminal. Over the past decade the Bloomberg administration has dramatically altered New York City's zoning through over 100 rezonings affecting approximately one-quarter of the city's land. This new proposal, which includes changes in the rules governing the use of the air rights/transferable development rights over Grand Central (the rights at issue in Penn Central, only a fraction of which have been sold) raises a number of interesting issues and questions.
The proposed rezoning (see the Department of City Planning study presentation) covers 78 blocks and seeks to encourage the development of more modern and taller office buildings in an area where the average office building is currently over 70 years old. The proposal would allow new buildings substantially taller than what currently exists in the area and potentially as large as the Empire State Building. These new buildings, which would only be allowed on sites that cover a block's full frontage on one of the area's avenues, would provide larger floor plates, fewer internal supports, and other amenities the City feels are needed for the area to stay competitive with business districts in "global competitor cities."
What is particularly interesting is that -- rather than simply upzone the area to allow these larger buildings -- developers would be able to obtain greater densities (through a higher maximum floor-area-ratio) as-of-right (meaning no required city planning approval process) only by either purchasing transferable development rights (TDRs) from nearby landmarks (the major seller being Grand Central, which has nearly two million square feet available) or by obtaining a bonus in exchange for a contribution to a City fund dedicated to area improvements. Beyond these as-of-right FAR increases, even taller buildings (close in size to the Empire State Building) could be constructed, but would be subject to a Special Permit process, which would include a design review and would require certain public improvements to be provided.
The proposal raises a host of issues. If additional density is desirable in the area, why not simply rezone, rather than require the purchase of TDRs on the private market or contributions to a City fund? Is the City simply selling an upzoning or demanding an exaction from developers? And of course, for area residents and workers and potential developers other concerns exist: what effect would these new buildings have on the nearby subway, which already operates above capacity, and how much will it cost to buy these additional square feet of permitted development?
The proposal is also interesting because it represents the latest example of the City's creative use of transferable development rights, a tool that in New York has historically operated in a manner akin to density zoning or, in the case of landmarks, as a means of mitigating the effects of development restrictions. These new programs in New York use TDRs instead as a means of furthering traditional and quite specific planning and land use goals in a manner more akin to how TDRs have been used in suburban and rural areas nationwide. The City's proposal builds upon the use of TDRs in the rezoning of West Chelsea, site of the elevated High Line Park, and at Hudson Yards, an area west of Penn Station in Midtown Manhattan. Both these districts involve the innovative use of TDRs to serve a variety of planning, preservation, and development goals. Vicki Been and I will be exploring these themes further in a forthcoming article.
At the Furman Center, we are also nearing completion of the first comprehensive database of TDR transactions in New York City. We have recorded data on over 400 of these transactions between 2003 and 2011 and have begun reviewing the data to learn more about the market for TDRs in New York and how developers use them in place or in addition to other tools for increasing the size of a project. I plan to say more about this data, our plans for it, and its relevance for thinking about TDRs in other cities in a future post.
Saturday, July 14, 2012
There is a lot of exciting stuff going on at CUNY these days. Not only have they got themselves a shiny new campus in Long Island City, the just inaugurated their new Center for Urban and Environmental Reform (CUER –pronounced “cure”). Headed up by Rebecca Bratspies, this new center is one of the few places engaging specifically with urban environmental issues. Such an endeavor necessarily involves land use issues. I was lucky enough to be invited to CUER’s inaugural scholar workshop. Titled a “Scholar’s Workshop on Regulating the Urban Environment,” the event brought together scholars from multiple disciplines as well as activists and policy makers. It was an interesting format for an event and I enjoyed hearing from architects, historians, geographers and others. I think we’ll be seeing a lot of interesting events and endeavors from this new center. I know I will be keeping my eye on it.
July 14, 2012 in Community Economic Development, Density, Development, Downtown, Economic Development, Green Building, Historic Preservation, Housing, Local Government, New Urbanism, New York, Planning, Sustainability, Urbanism | Permalink | Comments (1) | TrackBack (0)
Thursday, July 12, 2012
I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way. The first of these was a utopian community in Copenhagen, Denmark, called Christiana. Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries. When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since. About 1,000 residents now call Christiana home.
There are several aspects of Christiana that I think land use folks will find interesting. First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana. You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City. Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum: Christiana’s residents could stay, but they would have to buy the land from the Danish government. But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song. In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land. But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.
The result has been one of the most peculiar of solutions: a stock offering of nominal ownership that investors can purchase.
As the New York Times described it:
[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”
Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.
I found this struggle over the idea of ownership to be fascinating. After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn. However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.” Am I the only one who thinks of Johnson v. M'Intosh on these facts?
The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.” A picture is to the right. Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang. But it was the kind of rules that interested me: they speak, I think, to the kinds of problems that must have evolved in Christiana over time: hard drugs, biker’s colors, firearms, and so on. Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively. Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign. It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down. Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements? I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles. It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia. And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all. Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.
July 12, 2012 in Aesthetic Regulation, Architecture, Community Economic Development, Comparative Land Use, Constitutional Law, Development, Economic Development, Eminent Domain, Globalism, Planning, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)
Friday, June 15, 2012
Via Congress for the New Urbanism, I came across this link to what looks like a great panel discussion hosted by the Cato Institute and cosponsored by Next American City, called "The Death and Life of Affordable Housing." Here is the link to the video. The session features a terrific lineup of thoughtful commentators. From the event description:
Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .
The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.
I plan to check it out this weekend. Enjoy,
June 15, 2012 in Affordable Housing, Books, Conferences, Development, Environmentalism, Housing, Lectures, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 13, 2012
Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011). The abstract:
The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.
This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.
A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.
June 13, 2012 in Chicago, Constitutional Law, Development, Environmentalism, History, Planning, Property Rights, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Monday, May 28, 2012
Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk. But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers. I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.
But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch. Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws. This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:
I. Stark Tower’s Zoning District
As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.
(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)
Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.
Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?
Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.
So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.
The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw. The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective." Read the whole thing, it's wild, and quite sophisticated too.
But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.
Tuesday, May 22, 2012
Today I was listening to a podcast from the Congress for the New Urbanism's annual meeting last week (more on CNU 20 to come . . . ), and I heard a talk by Charles L. Marohn, Jr., the Executive Director of a nonprofit called Strong Towns. The organization is dedicated to improving community life at the town and neighborhood level. Here's a link to its ten Placemaking Principles for Strong Towns.
What looks like the best feature is the excellent Strong Towns Blog, which posts in-depth original analyses three times per week. Recent posts are on topics such as "The Micro City Beautiful"; Low-Impact Development (LID) vs. New Urbanism; and weekly news digests of interesting land use and planning stories. Check it out.
Monday, May 21, 2012
Will Doig has an interesting article in Salon called Urban Entertainment Districts: Blocks Where no one has Fun. Subtitle: "Cities keep trying to create downtown cool with dull nightlife districts. But who wants to hang out at the mall?" The article starts with a criticism of Dallas' Victory Park, moves to Kansas City's Power & Light District, and generally paints a negative picture of big-project attempts to create "entertainement districts"--or "districts" of any kind, including "arts districts." It's a well-written article with a good general critique, so read the whole thing. Let me tease out one of the sub-themes here: the problem of comprehensive urban development projects.
What could be wrong with a district where nightclubs and galleries are encouraged to thrive? Nothing, necessarily; done right, a city can help foster these scenes with a gentle guiding hand. Constructing an entire milieu from whole cloth, however, is where cities get into trouble. “The problem with these created-overnight districts is that you’re trying to create a culture as opposed to letting one grow,” says Nathaniel Hood, a Minneapolis-based transportation planner. “You’re getting the culture that one developer or city council member thinks the city needs, as opposed to the ground-up culture that comes from multiple players.” . . .
“A district inherently becomes a single-use idea,” says [studio owner Patrick] Kennedy. “Everything [in the "arts district"] has to be ‘art.’ You end up with a bunch of performing arts spaces and when they’re not in use it becomes a vacuum.” This vacuum has made the district itself a museum of sorts, something impressive to observe but strangely inert. (The Chicago Tribune called the area “the dullest arts district money can buy.”) . . .
So it seems like there are two problems with the "let's-create-a-cool-urban-district" impulse: (1) the practical (and cultural) limitations of comprehensive development projects, and (2) the inherent tendency towards single-use separation that comes with large scale "districting" plans:
That’s a defeatist choice to have to make, but the monocultures created by urban districting make it almost inevitable. At last week’s 20th annual Congress for the New Urbanism, Hood spoke about the folly that is Kansas City’s Power & Light District, an $850 million entertainment district whose neon signage is as blinding as its eagerness to be hip. . . .
It’s not just that the developers are boring people — the economics of single-owner districts incentivize blandness. Chain stores and restaurants can afford to pay higher rent, so they get first dibs. To boost rents even higher, tenants are sometimes promised that no competition will be allowed nearby. “Starbucks will be willing to pay the higher rent if [the developer doesn't] let other cafes into the area,” says Hood. . . .
He contrasts these contrived districts with the more organic development of an entertainment scene at Boston's Kenmore Square: "it shows that these districts work better without all the bureaucratic attachment parenting."
Let's not forget that these grand schemes usually come from good intentions, which combine economic incentive with a genuine desire to create attractive places. But there are some limitations that inhibit these grand schemes. I think that the biggest challenge for the intermediate-term urban planning future will be to figure out how to make legal and incentivize the creation of public spaces through an incremental but still realizable process.
I'm going to Dallas for a bar lecture in a couple of weeks, so I'll try to check out Victory Park. Thanks to Jason Rowe for the pointer.
Monday, May 14, 2012
As most land use professors are well aware, having land declared “blighted” isn’t always such a bad thing.
The potential disadvantages of official “blight” designation are obvious. Properties in declared “blighted” areas can be particularly susceptible to takings by eminent domain, as famously highlighted in Berman v. Parker, 348 U.S. 26 (1954). Official designations of blight can also depress property values in some situations due to a perceived stigma commonly associated with blighted land.
Why, then, would anyone want their real property to be declared “blighted”? The reason, of course, is that officially blighted property can qualify for special tax benefits or programs in many jurisdictions. If parcels are eligible for huge tax breaks only if they are officially labeled as “blighted,” then getting that label can suddenly be more a blessing than a curse.
An ongoing political debate in Columbia, Missouri, showcases this ironic aspect of redevelopment policy. Missouri statutory law provides that new real property improvements in “enhanced enterprise zones” (EEZs) can qualify for generous property tax reductions. Companies that invest in redevelopment within an EEZ can also receive state income tax breaks. A group of government officials in Columbia have thus been seeking to have nearly half of the city designated an EEZ. Unfortunately, EEZ designation requires that the entire EEZ area be declared blighted. In Columbia, the proposed blighted area would encompass vast portions of the city where retail outlets are succeeding and businesses appear to be thriving.
Sadly, those in favor of the EEZ proposal in Columbia argue that declaring half of the city to be blighted is necessary to enable it to compete statewide for new manufacturing and other jobs. At least 118 Missouri communities--comprising one third of the land area of the state--have already declared themselves blighted to take advantage of the EEZ statute, giving them a leg up in attracting private redevelopment dollars.
Should state redevelopment policies be structured such that local officials must declare large amounts of their communities to be blighted to have any chance of competing for private investment?
Those interested in exploring this topic from an academic perspective will find plenty of published scholarship on LexisNexis or Westlaw to distract them from grading final exams for at least a few hours. For a convenient launching point, consider Colin Gordon, Blighting the Way: Urban Renewal, Economic Development, and the Elusive Definition of Blight, 31 Fordham Urb. L. J. 305 (2004).
May 14, 2012 in Community Economic Development, Development, Economic Development, Eminent Domain, Local Government, Politics, Redevelopment, State Government | Permalink | Comments (0) | TrackBack (0)
Sunday, May 6, 2012
Sarah Schindler (Maine) has posted The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor Planning Decisions, 83 Universtiy of Colorado Law Review 471 (2012). The abstract:
Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management.
Prof. Schindler's article addresses an important problem in communities across the U.S., and offers some innovative solutions.
May 6, 2012 in Architecture, Development, Economic Development, Green Building, Local Government, Planning, Redevelopment, Scholarship, Suburbs, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 2, 2012
Many thanks to Matt for inviting me back as a guest blogger! If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams. Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.
I’ll use my first post to respond to Matt’s half-joking question: why should a land use prof spend time thinking about the space above land? After all, airspace rights receive scant attention in most land use casebooks. Discussions of airspace rights might seem better suited for a course on aviation law. Land use profs should stay down in the dirt, right?
Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.
For me, it all began while I was still practicing at a large law firm in Seattle. Our wind energy developer client approached us with a puzzling question: can a landowner be liable for stealing a neighbor’s wind? The client and a competing developer had leased adjacent parcels for wind farms. Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line. If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective. Only one of these two prime turbine sites could be profitably developed. Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party?
While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines. Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels? Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine. But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land. Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.
These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement. Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well. At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open. For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade. When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.
In summary, I think that airspace is very much a topic worth covering in a land use course. There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.
Monday, April 23, 2012
In search of a relaxing diversion after another hard day mulling the intricacies of land use and real property law, I sat down last night with my wife to enjoy a quirky, Oscar-nominated film called "The Descendants." You can imagine my surprise and indignation when a key plot point hinged on the rule against perpetuities! Although the intricacies of the rule were irrelevant, my enjoyment of the film was greatly diminished as I found myself attempting to mentally sort out how the rule would apply in this situation and whether the movie had gotten the rule right rather than paying attention to the poignant tale that was unfolding.
Fortunately for you, I am not going to spend this post saying whether the movie got the rule against perpetuities right because, frankly, that would just reveal my ignorance about the rule. Rather, the movie's treatment of the rule against perpetuities communicated an interesting and somewhat disturbing message about dead hand control in property law.
To summarize ever so briefly, the protagonist Matt King is a real estate lawyer in Hawaii who, along with innumerable cousins similarly garbed in garish Hawaiian shirts, has inherited an interest in 25,000 acres of pristine Hawaii land from a native Hawaiian ancestor. The land is held in a trust administered by our hero, who tells us at the outset that because of the rule against perpetuities, the trust is set to expire in seven years (thus beginning my confusion, as I had thought trusts were exempt from the rule). The entire local community is greatly interested in the fate of the land, which now rests in the hands of Mr. King along with several other weighty personal matters which will be resolved in the following 2 hours. SPOILER ALERT AHEAD:
Most of the cousins wish to sell the land now to a real estate developer before the trust expires. Our hero seems set to agree with them, but then dramatically changes his mind in the movie's conclusion, asserting that he and the family have an obligation to their ancestors, their descendants, and to the Hawaiian people at large to maintain the land in its pristine state. When his cousins question him about how he's going to get around the RAP problem, he says that he's got seven more years to figure that out. They seem convinced.
So what's the message for property lawyers? The movie interprets the RAP as a heartless legal formality that operates to remove land from its sentimental roots and convert it into a market commodity that can be exploited by rapacious real estate developers (it is no coincidence that the nearest thing the movie has to a villain is a real estate broker). This is, to say the least, an interpretation of the RAP that property profs will find novel. I have always understood the purpose of the RAP to be the prevention of a landed aristocracy: no longer can a landowner ensure that the source of his or her wealth stay in the family for all time. The dramatic conclusion of "The Descendants," by contrast, asks us to cheer for the protagonist as he attempts to perpetuate his family's landed aristocracy into perpetuity. The movie accomplishes this through a clever trick: we do not see the protagonist as an aristocrat, but as someone whose wealth and privilege is a burden because he is so conscious of the monumental social impact of his great fortune. And it's easy to look good when your adversary is a developer. The movie practically makes one nostalgic for the days when society was ruled by a patrician class with an acute sense of social responsibility. After Citizens United, we still have the patrician class, but without the social responsibility.
In short, I could not enjoy the movie.
Monday, March 26, 2012
Property Prof Blogger extraordinaire and official Land Use Prof Blog Buddy Steve Clowney draws attention to an interesting recent column from NY Times architecture critic Michael Kimmelman about NYU's plans to expand within Greenwhich Village. I agree with Steve's assessment that the column focuses too much attention on the effect the expansion would have on a little used plot of park space. It is curious that Kimmelman opens the column describing NYU's expansion plans as "acrimonious" but then immediately pivots away from describing any of the actual acrimony to an issue that only he seems to care about, to wit, this "underrated" park that nobody know exists.
Kimmelman's main argument appears to be that NYU itself is responsible for the park space in question falling into disuse, and so the city should leverage its zoning power to force NYU to make the park more accessible. At this point, I was running for my land use casebook to consult the Supreme Court's exactions jurisprudence (For land use newbies: governments are generally not allowed to leverage their zoning power for concessions absent an "essential nexus" between the concession sought and the land use approval requested).
In any event, I can't say Kimmelman is wrong as a policy matter. He may be right that the village needs more open space and that NYU's plan is antithetical to that need. To me, the most interesting part of Kimmelman's piece was his contention that the original Modernist "tower-in-the-park" design that spawned the endangered park space had actually done a good job of bringing much-needed open space to the village before NYU messed it all up. This is at odds with the conventional wisdom that the tower-in-the-park idea was a monstrosity that necessarily brought about extremely alienating public spaces (wisdom made conventional, of course, by a previous crusader against Greenwhich Village construction plans, Jane Jacobs). For an example of such an alienating space, check this out:
For those wondering, this is Empire State Plaza in Albany, New York, a gift of Modernist-loving governor Nelson Rockefeller.
I see an interesting parallel between Kimmelman's affection for Modernist park design in this column and his paean to the virtues of Modernist housing complexes in another column about which I blogged previously. Kimmelman seems committed to resuscitating a form of urban design that has been largely relegated to the dustbin of bad planning ideas. For that, I commend him!
Wednesday, March 14, 2012
While visiting New York City recently for the Association of American Geographers' annual meeting, I took in a great exhibit at the Museum of the City of New York entitled The Greatest Grid: The Master Plan of Manhattan 1811-2011. The exhibit coincides with the 200th anniversary of the adoption of the famous street grid for the island of Manhattan. It is a fascinating exploration of one of the most significant urban planning endeavors in American history. You can see an overview of the exhibit here, and the New York Times Review of the exhibit here. My thoughts on the exhibit, with pictures, are below:
J. Peter Byrne (Georgetown) has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development, George Mason Law Review, Vol. 19 (2012). The abstract:
The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.
This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.
Wednesday, March 7, 2012
Here's another new SSRN paper from Daniel R. Mandelker (Washington U): The Design Problem in Planned Communities. The abstract:
Planned communities are a dominant form of development, both in suburban areas and as infill in urban settings. Planned communities can be clusters of homes with common open space or master-planned communities covering thousands of acres, but in any form they provide opportunities for excellent design. This is the first chapter in a book that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation.
Monday, February 27, 2012
The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:
The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.
You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.
Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.
“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”
Another group in metro Atlanta is also fighting a Walmart, proposed by the same company behind the Athens development.
Jamie Baker Roskie
February 27, 2012 in Community Design, Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Planning, Politics, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Wednesday, February 22, 2012
Conservation easements are an important tool in the conservationist’s toolkit—created by state legislation and supported by substantial federal and local tax benefits to encourage private lands to be used for conservation purposes in perpetuity. Nevertheless, developers have asked courts to release conservation easement based on various legal principles including that of changed circumstances. These perpetual easements have been conveyed voluntarily and the benefits of the conveyance have accrued to the donor, and any successors in interest, which include expansive federal and state tax benefits as well as potential vested zoning rights.
Developers are asking courts to ignore the independent enforceability of the contractual agreement that established these conservation easements. These easements are contractually created enforceable property rights, independent of any additional consideration. See e.g. N.J.S.A. 18:B-3. Conservation easements are supported by valid consideration, entirely separate from more traditional municipal grants of development rights. In exchange for donating the conservation easement to a municipality or charitable land trust, the landowners receive above mentioned substantial tax benefits from both the federal and state governments. A changed circumstances claim is insufficient to nullify this independently created contract obligation.
In New Jersey the legislature created the statutory backstop for conservation easements in 1979 via the Conservation Restriction and Historic Preservation Restriction Act. Prior to this legislative enactment conservation easements were of dubious enforceability given the common law’s hostility to perpetual negative easements in gross (a.k.a. conservation easements). See Restatement (Third) of Property (Servitudes) § 1.6. The New Jersey statute established a framework for enactment as well as removal of such encumberments. N.J.S.A. 13:8B-1 et seq. These removal procedures are clearly set forth in the Act; the release of a conservation easement may only be accomplished (1) under the statute; (2) with a public hearing; (3) after providing notice by publication; (4) with the Commissioner of New Jersey Department of Environmental Protection’s approval; (5) if it is in the public interest; and (6) recognizing the negotiated terms of the conservation easement itself.
Despite the independent enforceability of individual conservation easement contracts and various state statutory frameworks, developers are asking courts to be released from these easements—resulting in an economic windfall for the developer. These developers actively entered into, or purchased the land subject to, conservation easement and its limited provisions for extinguishment. They have also benefitted from generous local and federal tax deductions. Conservation easements—and the proper channels for their release—must be upheld as tools of conservation as intended by legislatures and traditional contract law and not used as an economic subsidy for developers when circumstances change.