November 24, 2010
Schragger on Business Improvement Districts and the Urban Resurgence
Richard Schragger (Virginia) has posted Does Governance Matter? The Case of Business Improvement Districts and the Urban Resurgence, forthcoming in the Drexel Law Review. The abstract:
This Essay, written for a conference entitled “Business Improvement Districts and the Evolution of Urban Governance,” examines the relationship between innovations in urban governance and the recent urban resurgence. Whether business improvement districts (BIDs) have played a role in that resurgence is part of a larger inquiry about the causes of local economic growth and decline. This Essay begins by providing some background to the debate about BIDs, suggesting that BIDs have played a less significant role in urban governance than either proponents or detractors have sometimes asserted. It then makes some tentative efforts to describe the connections between BIDs and the urban resurgence in places like Philadelphia, arguing that those connections are not particularly robust. Finally, the Essay suggests caution when attempting to draw causal connections between governance and economic outcomes. It is not at all certain that good governance matters to local economic growth. Other factors may be more significant. If that is so, then the current competitive model of city growth and decline that seems to dominate thinking about urban law and policy is far too simplistic.
Fascinating! In addition to the original thesis, the article does a great job laying out the positive and negative stories of the BID. Since the early '90s, there have been two relevant phenomena: an upsurge in BIDs, and much progress in urban renewal. But is there a causal relationship? Anyone interested in revitalizing downtowns, urbanism generally, or the public-private debate should check it out.
November 18, 2010
Kids' Playscape Replicates Planning Problems
From the Conservative Blogger, a post (with accompanying photo) about how the children's play area at the Salt Lake City airport inadvertently (or cleverly) replicates the typical planning dilemas of a small town. My favorites:
Underutilized Downtown: Even without those dirty deeds by developers to bring a Walmart to town, the downtown is suffering from a lack of businesses and street life. The town’s goal to bring artists and boutique shops was never realized due to personality conflicts between the local planning board and the chamber of commerce...
City Park: The park is unfortunately located on an environmentally-degraded site on the edge of town, the result of a manufacturing plant that skipped town 20 years ago and left the town without a major employer or a business generator for the freight railroad.
Surface Parking Lot: The downtown merchants complained of a parking problem downtown after years of being in a state of denial over their employees occupying parking spaces on Main Street, prohibiting shoppers from accessing their stores. The town spent millions to acquire land on the edge of downtown to build a non-descript parking facility that is rarely used except by vagrants wishing to make drug deals.
For those of you who travel to or live in the mountain west, next time you fly through Salt Lake check out this "emerging planning conundrum" near the E Gates.
Jamie Baker Roskie
November 14, 2010
NY Times on DC Building Height Limits
The New York Times has an interesting article on the current discussion about the building height limits in Washington DC: In the Capital, Rethinking Old Limits on Buildings. From the intro:
Its low-slung architecture is no accident. In 1910, Congress passed an act limiting the heights of buildings in the capital. The first residential skyscraper, the Cairo, had been built, and at 12 stories, it was higher than fire ladders could reach and scandalously out of sync with its smaller neighbors.
One hundred years later, most Washingtonians see the act as a good thing. Their sidewalks are shadowed by the outlines of trees, and the dome of the Capitol can be seen from most roof decks. The act, they say, preserves the unique nature of their city, whose landmarks draw millions of visitors each year.
Now, on the act’s centennial, a small tribe of developers, architects and urban experts are questioning the orthodoxy of the rule’s application. A modest change, they argue, would inject some vitality into the urban scene, would allow for greener construction, and could eventually deliver bigger tax receipts for the badly pinched city budget, currently in a hole of about $175 million.
But raising the limit is nothing short of sacrilege for preservationists here, who fear that any change, however slight, will open the door to more.
The DC building height limit controversy is a crystallization of many of the most significant and perplexing contemporary land use issues. On the one hand, the height limit was one of the earliest and longest-standing land use regulations; it invokes the Enfant/Parisian heritage of the historical DC plan; and it has undoubtedly led to the very pleasant streetscapes and visuals in much of DC today. On the other hand, it has mandated a density limit that has exacerbated the scarcity of urban land, inflated real estate prices, and helped cause the serious sprawl that has plagued the DC region over the past generation. It is also an interesting debate, considering that many leading urban theorists call for greater density and vertical development, while in the nation's capital it will literally take an Act of Congress to move in that direction.
November 14, 2010 in Aesthetic Regulation, Architecture, Density, Development, Downtown, Federal Government, Historic Preservation, History, Local Government, Planning, Urbanism, Zoning | Permalink | Comments (0) | TrackBack
November 04, 2010
Shoup on Graduated Density Zoning
Prof. Donald Shoup (Urban Planning, UCLA) contributed a comment to our recent post on Daniel Kelly's eminent domain paper. In case you missed it, I wanted to be sure you had the chance to get the link to Prof. Shoup's important paper Graduated Density Zoning, from the Journal of Planning Education and Research (2008). The abstract:
The difficulty of assembling sites large enough to redevelop at higher density can impede regeneration in city centers and accelerate suburban sprawl onto large sites already in single ownership. One promising new planning strategy to encourage voluntary land assembly is graduated density zoning, which allows higher density on larger sites. This strategy can increase the incentive for owners to cooperate in a land assembly that creates higher land values. Graduated density zoning will not eliminatethe incentive to hold out, but it can create a new fear of being left out. Holdouts who are left with sites that cannot be combined with enough contiguous properties to trigger higher density lose a valuable economic opportunity.This article examines the difficulty of assembling land for infill development, and explains graduated density zoning as away to encourage voluntary land assembly. Finally, it presents the results of graduated density zoning in practice.
Graduated density zoning is a compelling idea. You may also be familiar with Shoup's influential work on parking, including his book The High Cost of Free Parking (APA, 2005), and very recent articles quoting him in the New York Times (Tyler Cowen, Free Parking Comes at a Price, Aug. 2010) and Slate (Tom Vanderbilt, Time Expired: The End of the Parking Meter, Oct. 2010).
September 09, 2010
Layard on the Law of Place
Antonia Layard (Cardiff Law School) has posted Shopping in the Pubic Realm: The Law of Place, published recently in the Journal of Law and Society, Vol. 37, p. 412, (2010). The abstract:
September 02, 2010
Gotta Get Back in Time
Last weekend we saw a TV rerun of the 1985 classic Back to the Future. I was reminded of something that didn't occur to me until many years after I saw it for the first time, which is that it is, subtly, an excellent land use movie. Christopher Leinberger observed this in the opening pages of his terrific book The Option of Urbanism: Investing in a New American Dream. From the intro:
When I teach a graduate real estate seminar, the first homework I give to the students is watching the 1985 movie Back to the Future. The film reflects most of the fundamental changes in how America has been built over the last sixty years.
Specifically, in 1985 suburban "Hill Valley," the old downtown is dead. The public square is deserted at all hours except for the homeless; once-thriving establishments have been replaced by adult businesses; and the clock hasn't been fixed in thirty years. The new (1980s) mall at the outskirts of town now has all the action, accessible only by car (including time-machine car, or terrorist van!).
When Michael J. Fox's character Marty McFly goes "back in time" to 1955 HIll Valley, he finds a vibrant downtown, where everyone walks around for work and shopping, teens go to the malt shop and the movie theater, and small businesses abound. Sacred, safe, and busy, perhaps? Back to Leinberger:
The two Hill Valleys show the only two viable divergent options we have in how to build our metropolitan built environment--which consists of the houses, roads, water and sewer lines, police and fire stations, office buildings, shops, factories, parks, and everything else that makes up where most Americans live, work, and play.
Leinberger goes on to label the 1955 version as "walkable urbanism," and proceeds from there. The Option of Urbanism has been one of the most insightful books I've read recently, and of course if you're looking for a Labor Day Weekend movie that deals with land use, you'll find Back to the Future worth a fresh look.
Now, this kind of goes downhill at the end of the movie when, in the sequel set-up, Doc goes thirty years forward and then returns in a flying car fueled by household garbage. So we can expect that in 2015?
With that, is it possible that those of us who are interested in new urbanism can now be more sympathetic with George McFly's botched pickup line: "you . . . are my . . . density!"
August 26, 2010
America's Ten Dead Cities
From time to time here on the land use prof blog we post a link to one of the ubiquitous "top" lists that various media outlets like to publish about America's top cities for business, living, etc. I see a lot of these because a trend in recent years has been for Texas cities to dominate these lists, at least when they are based on economics. Here's a related, but more depressing list: America's Ten Dead Cities, from the site 24/7 Wall Street. The cities:
(1) Buffalo; (2) Flint; (3) Hartford; (4) Cleveland; (5) New Orleans; (6) Detroit; (7) Albany; (8) Atlantic City; (9) Allentown; (10) Galveston.
Read the story to get a sense of the narrative arcs of these once-prosperous cities fallen on harder times. Mostly, it won't surpise you. Other than the two Gulf Coast cities on the list (both of which (#5 & 10) I still visit regularly), they are mostly post-industrial Northeast or Great Lakes cities (including my birthplace (#8), my hometown (#7), and another place I lived as an adult (#4)). Of course, Billy Joel was already lamenting the decline of #9 back in 1982 (come to think of it, Bruce Springsteen told a pretty dark tale about #8 before that). It's interesting for us not only because of how much city economies have driven land use planning, but also because we need to consider the historical trajectory of these cities when considering policies to shape cities going forward.
July 13, 2010
Leinberger (vs. Kotkin): Walking--Not Just for Cities Anymore
On The New Republic's excellent "The Avenue" blog, Christopher Leinberger (author of The Option of Urbanism) discusses a recent Brookings debate with Joel Kotkin (author of The Next Hundred Million: America in 2050). From Walking--Not Just for Cities Anymore, Leinberger notes:
I just had a debate with Joel Kotkin, whom many consider to be an apologist for sprawl. Surprisingly, there is a convergence between his view of the next generation of real estate and infrastructure development and mine: a constellation of pedestrian-friendly urban development spread throughout metropolitan areas, redeveloping parts of the central city and transforming the inner, and some outer, suburbs. There are certainly differences between the two of us: I happen to see significant pent-up demand for walkable urban development and massive over-building of fringe car-oriented suburban housing and commercial development.
In fact, I see compelling evidence that the collapse of fringe drivable suburban markets was the catalyst for the Great Recession, and the lack of walkable urban development due to inadequate infrastructure and zoning is a major reason for the recovery’s sluggishness. Joel feels the demand for walkable urban development is a fraction of the future growth in households. I think rail transit, biking and walking infrastructure are crucial to make this walkable urban future happen; Joel thinks bus rapid transit is as far as we have to go in the transit world… making cars more technologically efficient is his main answer.
I have been hoping that Leinberger will prove correct about his belief in the untapped market demand for walkable urbanism, which has not persuaded Kotkin and other critics. Leinberger concludes:
We need move away from 20th century concepts that confuse the conversation. If I am right, 70 to 80 percent of new development should be in walkable urban places, and my research leads me to think the majority of that development will be in the suburbs.
July 13, 2010 in Density, Development, Downtown, Exurbs, Financial Crisis, Local Government, Mortgage Crisis, New Urbanism, New York, Pedestrian, Planning, Sprawl, Urbanism, Zoning | Permalink | Comments (0) | TrackBack
July 10, 2010
NYC Charter Review Commission staff Preliminary Report
The other day we mentioned the New York City Charter Revision Commission. Yesterday the Commission staff issued its Preliminary Report, available here. The Commission has noticed a public meeting for Monday, July 12 (viewable by live streaming at the Commission webpage).
So will the Charter revision include big, sweeping changes in New York's land use law? It doesn't seem likely, according to the NYC Streetsblog's analysis in Charter Revision Report: Land Use Process Should Stay Untouched, For Now.
. . . . The land use process, which was the subject of an entire commission forum last month, will likely remain unchanged for the time being. . . .
While a series of major revisions were floated at last month's land use forum -- like requiring comprehensive planning in addition to targeted rezonings, increasing the power of borough presidents and community boards in the land use process, and reforming the weak 197-a community planning process -- today's report recommends any proposals that "significantly implicate important structural issues... should be reserved for future consideration."
With regards to land use, the report makes only two small recommendations, each based on practices adopted by two borough presidents. . . .
Adam Friedman, the director of the Pratt Center for Community Development, said that holding off on reforming the land use process is understandable, but that the need for change shouldn't be forgotten. "It's appropriate to take this lead time," said Friedman, "but you do have to begin the process."
March 30, 2010
New Approaches to Urban Redevelopment
Saturday I attended a very interesting lecture by Ken Reardon, who is a planning professor at The University of Memphis and a founding member of the Memphis Regional Design Center (MRDC). The lecture was part of an event called "Look at That! Fresh Approaches for Urban Redevelopment in Athens." The economy being what it is, many of our clients are looking for help with redevelopment, rather than combating sprawl, so I took the opportunity to attend this event, sponsored by the Athens-Clarke Heritage Foundation.
Reardon's lecture was very interesting. First he had all the participants engage in a group dialogue about our vision for Athens' future. Ideas included more urban agriculture, better downtown development, preservation of our small town character, and more affordable housing.
Then Reardon discussed how the MRDC has helped some of the most disadvantaged neighborhoods in Memphis, using team members from local design firms, University of Memphis, the Urban Land Institute, and other partners. He declared himself most proud of a project that turned the largest outdoor drug market in Memphis into a farmers' market, which is truly a noteworthy accomplishment. The center also played a key role in helping Memphis pass its new, form-based, Unified Development Code. All the time he was talking, I was thinking, "We need that here!" I'm planning to spend some time picking Reardon's brain over the next several months.
Jamie Baker Roskie
March 09, 2010
Manufactured Housing - People of Hope
While we're on the subject of manufactured housing I'd like to give a shout out to People of Hope. This Athens-based organization is creating the first resident-controlled, affordable manufactured home development in Georgia. This organization arose out of an eviction of a group of tenants from a mobile home park in Athens when the owner sold off the land for development. Like many places, Athens is short on affordable housing in general, so these tenants took matters into their own hands. With the help of the fine folks at Georgia Legal Services and Sutherland law firm, as well as Athens Land Trust and the Georgia Community Loan Fund, these folks are well on their way to realizing their goals.
Jamie Baker Roskie
January 17, 2010
Cruise Ships & Land Use
The talk in Charleston these days--apart from Boeing's decision to build a new manufacuturing center nearby--focuses primarily on proposed plans to construct an upgraded terminal for cruise lines--specifically for Carnival, doubling the current number of cruises departing from the Holy City. Even though Charleston boasts a seafaring past, the land use community's reception to the proposal has been mixed. By way of example, for those who've visited Old San Juan, Puerto Rico, on a busy day when thousands of tourists pour from multiple muti-story cruise ships and overwhelm local infrastructure, similar developments in Charleston may not be such a good thing. To this end, preservationists are weighing in, pro and con, on the proposed two-story system of shops, dining, and lodging planned for the area adjacent to the terminal. Striking the right balance between tourism, economic diversity, quality of life for local residents, and preservation of historic resources is never easy, but public discussions on the topic suggest that local consensus may be reached. Click here and here to learn more. New York design firm Cooper Robertson & Partners, which has already designed several public buildings in historic Charleston (Visitors Center, Judicial Center, College of Charleston School of Education) has been selected to do the work.
Will Cook, Charleston School of Law
December 24, 2009
It's a Wonderful Life & The Mortgage Crisis
I had my annual viewing of It's a Wonderful Life, Frank Capra's 1946 classic, the other day, and it reminded me that a few commentators over the last year have drawn comparisons between the world of Bedford Falls and the Bailey Building & Loan, and the conditions that caused the current mortgage crisis.
The comparisons seem to go in two directions. Some have argued that when America ditched the Bailey Building & Loan model of small local banks as the locus for local real estate development and financing in favor of the nationalized lending institutions and international trading of pooled mortgage-backed securities, it set us on the road to ruin. But others have argued that it was the very assumption advanced by George Bailey that individual homeownership was the sine qua non of civic life and human flourishing that led to suburban sprawl, the decline of cities, and the irrational financial overleveraging that led to the subprime bubble.
Below are some links to articles comparing It's a Wonderful Life to the mortgage crisis, and I'll leave it to you to decide which critique is more persuasive, or whether there are elements of both that are true.
Just yesterday, Ray Brescia (Albany Law) sided with the Bailey Business & Loan and the CRA in "Banker's Holiday: Strengthen 'George Bailey's Law'" on the Huffington Post.
Andrew M. Rosenfeld (Chicago Law) compared the localized backing of whole mortgages with the national market process for securitzed mortgages last year Newsweek's "It's a Wonderful Mortgage Crisis."
Ross Douthat in the Washington Post suggested laying much of the blame on George Bailey for the expansion of easy credit and government overpromotion of suburbia in "Not So Wonderful Now: Looking for someone to blame in the worsening crisis? Let's go back to Bedford Falls". Douthat ultimately comes back to a limited defense of Bailey's vision, though.
I know that others have remarked on this theme so leave a comment if you know of a good one that I missed.
Watching the movie again left me with one more related thought: which is better, Beford Falls or Potterville?
Capra's audiences have long assumed that the quaint Bedford Falls was the ideal American community and that the wild Pottersville was dystopia. But a few years ago in Salon Gary Kamiya challenged this assumption head on in "All Hail Pottersville" with the simple observation that "Pottersville rocks!" I think there's something to be said for this. Bedford Falls does look a little boring. Putting aside the implication that instead of middle class homeowners Pottersville's denizens were all living in Mr. Potter's tenement slums, there is no reason that a community can't have a vibrant downtown accessible by neighborhoods. I know that Pottersville was painted to look like Sin City, but it also provided a busy and walkable area (with plenty of cops on hand to harass disoriented middle-aged bankers and guardian angels), and who's to say the more wholesome entertainment venues aren't thriving just a block or two away off of externalities generated by the seemingly popular Pottersville downtown entertainment district?
Maybe James Lileks put it best: "We all want to live in Bedford Falls . . . but we all would like a night in Pottersville." But wouldn't a good new urbanist say that they can both exist in the same community?
November 15, 2009
Sports stadiums: if you build it, will they come?
For you football fans out there, here is a Sunday post about the recurring issue in many cities about building a new sports stadium, either for the local team or to attract a new team to town. There are a lot of land use issues bound up in these controversies. Cities like to have sports teams, not just for the city's sports fans, but also very much for the broader but nebulous civic sense that the city is a "major-league" town or that it has "arrived." Claims are made about the economic development that must surely result from the construction of fancy new digs for the team. Transit and traffic issues are involved. Location: should the stadium be in the suburbs, or downtown? What will be the impact on neighborhoods? On property values and taxes? On the environment? Of course, the gorilla in the room is the question of who pays--the team or the taxpayer? People don't want to lose their team, but neither do they want to be held "hostage" by the wealthy owners' demands. Then there is the problem of land assembly. How much eminent domain will be needed?
My sense is that over the last few years the public has become much less receptive to the notion of public financing for sports stadium (stadia?). Yet the issue comes back repeatedly when a team makes noises about "needing" an upgraded venue.
The nation's second-largest city (and media market) remains without a professional football franchise, but that isn't stopping Los Angeles from trying to lure one back. From a recent article about LA's latest new-stadium proposal:
LOS ANGELES — Nearly 15 years after the Los Angeles area’s two professional football teams left for other cities, Gov. Arnold Schwarzenegger has signed a bill to clear the way for a new stadium seen as pivotal to drawing a team to the region. . . .
But the latest effort, to build a 75,000-seat, $800 million “green” stadium in City of Industry, a warehouse and shopping district 15 miles east of downtown, is considered one of the more viable to come along in a long time.
No taxpayer money would be used to finance it, a condition that has helped squelch other plans; the developer, the Majestic Realty Company, said it would seek private investors.
Here is a website about the proposal: losangelesfootballstadium.com. Lots of design info and pictures. I think it's particularly interesting in that I don't recall any previous proposals for a "green" stadium. It's good that the proposal purports to eschew direct public financing; the state is mired in fiscal crisis, and LA is still paying for Jacko's memorial at the Staples Center. But what will the indirect public costs be? Will they be outweighed by the always-promised economic development?
Relatedly, in the other kind of football, soccer ("metric football"?), Houston wants to build a soccer-specific stadium for the Major League Soccer franchise Houston Dynamo. The stadium is proposed for an area on the edge of downtown and on a proposed light rail line. There was a little bit of debate over the proposed use of tax increment financing for certain aspects of the project. [We call Houston the Unzoned City but there are some significant uses of Tax Increment Reinvestment Zones or "TIRZ"]. As far as the public "sales pitch" for the soccer stadium, Houston already has the team, but it would like to play host to potential U.S. World Cup games, thereby proving that the city has "arrived."
There are also the peripheral legal issues around stadiums, such as regulating the "pedicabs" that operate to bring people to and from the game from distant parking. (Here's what they look like.) UPDATE: here's a USA Today article on the growing use of and legal issues about pedicabs.
And of course, don't forget the simmering controversy over the Brooklyn Atlantic Yards project, which combines a Kelo-style master redevelopment plan (and heartburn over eminent domain) with all of these issues about public involvement with bringing a new sports team (the NBA Nets franchise) to town, and the litigation in Goldstein v. New York State Urban Redevelopment Corporation.
Brian Yates has an article on the subject called "Whether Building a New Sports Arena will Revitalize Downtown and Make the Team a Winner," Vol. 17 U. Miami Business Law Review p. 269 (2009). So if you're headed out to the stadium today, enjoy the game, and think about all of the land use issues involved! Thanks to Ryan Palmquist, Paul Farnum, Alan Saweris, and William Powell for links.
November 15, 2009 in Architecture, Development, Downtown, Eminent Domain, Environmental Law, Green Building, Houston, Local Government, Real Estate Transactions, Zoning | Permalink | Comments (0) | TrackBack
November 11, 2009
Providence Moves Highway, Improves Connectivity and Economy
In a move that will likely encourage other cities to follow its example, city leaders in Providence, Rhode Island, have decided to relocate a major highway from the heart of downtown to its outskirts. Providence is also the city which, two decades earlier, uncovered two rivers it had previously paved over--the Woonasquatucket and Moshassuck Rivers--repointing their convergence for aesthetic reasons. For a full report about the highway relocation, see Elizabeth Abbot, Removing a Barrier: Relocating an Interstate Allows a New England City to Reconnect, New York Times (Nov. 11, 2009). Officials hope to entice Brown University and Johnson & Wales (the culinary college) to purchase parcels in the shadows of where the highway once stood. This area, also known as the Jewelry District, was originally connected to downtown Providence before the construction of the highway. Once built, the highway severed this connection. Following demolition of the old highway, Providence will begin work on establishing a new street grid. In addition to reconnecting the area to downtown, the new street grid will connect the District to the waterfront. Providence envisons there a new city park complete with an amphitheater and sculpture garden. Local neighborhood groups are in the process of lobbying for a new transport hub, one that would include ferries. Although completing these projects will take time in light of Providence's deteriorating economy, it is hoped that improved land use--achieved using New Urbanist principles--will yield economic benefits in the years to come.
Will Cook, Charleston School of Law
November 10, 2009
Kelo's next twist: Pfizer to close New London facility
This is going to get some serious attention among eminent domain watchers. Pfizer just announced plans to close its R&D headquarters in New London, Connecticut. You will recall that Pfizer's facility was a major factor in the redevelopment plan at issue in Kelo v. City of New London. The Hartford Courant has the story and video:
Pfizer Inc. will shut down its global research and development headquarters in New London within two years, transplanting most of the 1,400 employees working there to its vast laboratory complex in Groton, the most dramatic fallout yet from the pharmaceutical giant's recent merger with Wyeth.
Now, the Pfizer facility was not on the same land as Susette Kelo's condemned home. But the announcement of Pfizer's plans was part and parcel of the overall redevelopment plan that the economic development corporation issued, which the U.S. Supreme Court found persuasive in justifying the "economic development" taking of property as within the meaning of the Public Use Clause. From Part I of Justice Stevens' majority opinion:
In January 1998, the State authorized a $5.35 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area's rejuvenation.
It looks as though the rejuvenation hasn't materialized, and now the would-be catalyst is packing up and leaving. The corporation's use of eminent domain in the Fort Trumbull area was intended to complement the jobs and taxes generated by Pfizer with a major redevelopment that was to include mixed-use projects, a marina, a waterfront conference center, and other good-sounding things. But apparently very little if any of that development has taken place. To be fair, the redevelopment was probably hindered by both the pending litigation and now by the economy. Either way, it looks like Pfizer (which makes Viagra among other pharmaceuticals) will not be taking advantage of the government's use of "e.d." in New London to fight "e.d." everywhere. [As Foghorn Leghorn would say, "that's a joke, son!"]
This news will probably become Exhibit A in any future fights against the use of eminent domain in redevelopment projects. Exhibit B will be Poletown, the Detroit neighborhood that was condemned for economic development purposes in 1981 at the behest of General Motors; at its peak the plant delivered about half of the promised 6,000 jobs and much of the former neighborhood land is unused. Some critics estimate that the Poletown effort cost $300 million. The Michigan Supreme Court reversed the Poletown holding on economic development takings just prior to Kelo in County of Wayne v. Hathcock, 471 Mich. 445 (2004).
1) This is one more nail in the coffin for economic development takings as a political issue. The post-Kelo backlash was as profound as it was surprising to those already familiar with the Berman and Midkiff precedents. With over forty states ostensibly renouncing the use of eminent domain for "economic development," the concept is anathema politically. The backlash--with support from across the political spectrum--seemed to have resonance mostly in arguments about property rights and/or equity. With the evident failure of New London's comprehensive redevelopment plan, opponents can add efficiency and effectiveness to their quivers.
2) That doesn't necessarily mean, however, that local governments won't be able to use eminent domain in redevelopment projects. Some states don't have anti-Kelo laws, as the Atlantic Yards controversy shows, and others have reforms that have wide "blight" loopholes or otherwise lack teeth, as Somin discusses in The Limits of Backlash: Assessing the Political Response to Kelo. While no one wants to say they are doing an "economic development taking" anymore, that doesn't mean that local governments won't be willing or able to justify condemnation as part of a project to revitalize an area.
3) The persuasiveness of comprehensive redevelopment plans to justify eminent domain may be challenged in the future. In takings litigation, courts are very deferential to legislative judgment and police powers, and the Kelo majority was obviously influenced by the comprehensive nature of the master plan. I don't see any big changes in judicial review as a result--it's a longstanding corollary of rational-basis review that the government doesn't have to have the best plan, it just has to be . . . rational. But the arguments will have more force in light of the New London story; perhaps more people will advocate for Justice Kennedy's concurring opinion argument for some sort of more "demanding" scrutiny.
4) Politicians and planners might be more cautious about hitching their redevelopment wagons to one big private entity. I'm as enticed as anyone by the idea of revitalizing a downtown/waterfront/etc. with a grand scheme that involves jobs, tax revenues, public-private partnerships, mixed-use development, walkable urbanism, transit, and the creation or enhancement of public space. But if the plan is based around promises from Pfizer, or GM, the incoming sports team, or any other single private entity or group, then the whole plan risks failure if the private actors decide to go elsewhere (even if it's because of litigation or the economy). When these plans fail to deliver, both the eminent domain power and the public fiscal resources are wasted.
UPDATE: Ilya Somin has some further analysis of the issue and of this post over at the Volokh Conspiracy. I think he is right: economic development takings will probably continue as long as the balance of power favors government actors (with the legal power) and private corporations (with the money) over individual property owners. I said above that politicans and planners "might" be more cautious, but I should have said that they should be more cautious; like Somin, I don't trust that they will do so. On the politics of the issue, I'd suggest that at least in the face of informed opposition, proponents of economic development takings ought to be more circumspect in the future.
November 06, 2009
In Local News...
Here in Athens, Georgia we didn't have a local election on Tuesday, but there is some interesting downtown development news. The Athens-Clarke Commssion (we're a consolidated city/county) just voted to construct a new parking deck downtown, over the last minute objections of some Athens residents that the deck is too big and not needed. However, there is a waiting list for the other parking deck downtown. Also, the Commission must spend the money, as it has already been allocated by referendum as part of our Special Local Option Sales Tax. Also, the site currently houses a parking lot, so the aesthetic arguments didn't carry much weight with the commission.
This particular intersection is also of interest because it is the home of the historic Georgia Theater - at least, the shell of the Georgia Theater, much of which was destroyed by a fire earlier this year. The rebuilt theater will be part of the mixed-use complex that will be built as part of the parking deck. The theater is a much beloved landmark here in Athens, which has a vibrant local music scene. Since it was built in 1889 the theater has been a YMCA, a Masonic lodge, a church, and a music venue hosting 100s of bands, including R.E.M., The Police and the B-52s. The theater owner had just renovated the entire theater prior to the fire, and his casulty insurance won't cover the whole loss. Therefore the Georgia Trust for Historic Preservation has agreed to help the theater raise $1.5 million for restoration. If you donate $100 your name goes on a brick in the new space - a cool way to be part of history remade.
Jamie Baker Roskie
October 23, 2009
Urban Problems in Rural Georgia
As promised earlier, today I report about our field visit Tuesday to Hawkinsville, Georgia. Hawkinsville/Pulaski County is a small community (population 10,000) south of Macon. Its primary industry is agriculture, and it has an award winning regional hospital. The people of Hawkinsville are hospitable, smart and creative.
Unfortunately, Hawkinsville has the very urban problem of declining housing stock in its core. Actually, I should say that this is a pretty common problem in communities of all sizes. Hawkinsville is not the only town I know of in rural Georgia dealing with delapidated housing. Fortunately, Hawkinsville is using some old urban redevelopment laws in a creative new way, and has established its own redevelopment authority. HURA, as it is popularly know, has already cleared many properties and is working on redeveloping an abandoned cotton mill into affordable lofts. (View a blog about the history of Hawkinsville, including the cotton mill, here.)
Our little delegation to Hawkinsville included my colleague Matt Bishop of UGA's Archway Partnership, and my former student and current client Heather Benham of the Athens Land Trust. Matt's background is in public administration. As Coordinator of Operations at Archway, his job is to connect university resources to communities in need of expertise. Heather was a student in the clinic six years ago, and is now an expert in her own right on community land trusts. We had a great conversation with Hawkinsville local leaders about the possibility of HURA forming a land trust, and how that might help them in their redevelopment efforts. We also ate good barbeque at Sow Bellies, which I highly recommend if you're ever in South Georgia.
These types of projects are great for my students to see, because it shows the interdisciplinary nature of land use law. It also allows my clients to mentor each other to solve common community problems. We'll continue to work with Hawkinsville over semesters to come, so I'll likely report more about their interesting and innovative work as time progresses.
Jamie Baker Roskie
October 19, 2009
Small Improvements, not Grand Designs
Andrew M. Manshel (executive vice president, Greater Jamaica Development Corp.) has written A Place is Better than a Plan: Revitalizing Urban Areas is Best Done Through Small Improvements, not Grand Designs for the Autumn 2009 issue of City Journal. The summary:
The importance of small ideas to urban revitalization isn’t widely appreciated. Particularly in the most recent real-estate cycle, many planners, design professionals, and developers produced grand schemes instead. But profound change is more likely to result from a deeply considered idea that alters an essential component of an urban environment than from an elaborate master plan that requires abundant resources and considerable political capital. While some large-scale plans, like Rockefeller Center, are successful, most become impersonal, overbearing failures—or, even more often, are stillborn, the victims of the long process of assemblage, environmental remediation, community participation, zoning adoption, and the securing of financing.
Manshel uses the example of putting movable chairs in several small New York parks beginning in the 1980s to convey a message of personal control over social arrangements, trust, and safety. He seems to be telling a story that is sort of Jane Jacobs-meets-broken windows theory. Plus there is a shout-out to Houston's new downtown urban park, Discovery Green.