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!
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)
Monday, February 20, 2012
Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:
In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.
Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:
[Insert sound of crickets chirping, grass growing, and paint drying].
Somin cites an op-ed by Christina Walsh of the Institute of Justice:
A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.
Wednesday, February 1, 2012
Late last year I posted twice (here and here) about a proposal to put a mixed-use development, anchored by a 100K square foot Wal-Mart, into downtown Athens. Today things heated up in a very Athens way, with Patterson Hood of the Drive-By Truckers unveiling a protest song and a group called "Protect Downtown Athens" launching an incredibly thorough website analyzing many aspects of the development. This group is supported by members and management of R.E.M., and other local movers and shakers. Release of the song has already increased coverage of this issue in the national blogosphere and MSM. This just keeps getting more interesting!
Jamie Baker Roskie
February 1, 2012 in Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)
Saturday, January 14, 2012
From an email sent by Rick Su (Buffalo), the Chair of the AALS Section on State & Local Government Law, here is something that may be of interest to land users. The Section is already planning for the 2013 AALS meeting in New Orleans:
The tentative title is Cities in Recession. The program will look into the many ways that cities have not only been affected by, but are also responding to, the current economic downturn. This should provide a timely lens for exploring a wide range of local government issues, from municipal finance to education to economic development. In addition, it offers an opportunity to look at both distressed and resilient cities. The planning for this panel is in its early stages; I eagerly welcome any comments or suggestions that you might have (email@example.com).
Thursday, January 5, 2012
I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making). Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal. Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:
On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.
January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)
Saturday, December 31, 2011
The New Year brings us to a new month to introduce a new guest blogger, Prof. Stephen Miller. Stephen is an Associate Professor and Director of the Economic Development Clinic at the University of Idaho College of Law. From his faculty bio:
Stephen R. Miller joined the faculty of the University of Idaho College of Law in 2011. Miller received his undergraduate degree from Brown University, and a master’s degree in city and regional planning from the University of California, Berkeley. In 2006, he graduated from the University of California, Hastings College of Law, where he was senior articles editor of the Constitutional Law Quarterly, and was a research assistant to Professor Joel Paul. Miller also worked for a land use and environmental law firm in San Francisco, California prior to joining the faculty. His research interests include economic development, sustainable development, land use, environmental law, and local government law.
Welcome aboard! Stephen gives us an auspicious start to 2012.
Friday, December 30, 2011
Rabah Arezki (IMF), Klaus Deininger (World Bank), and Harris Selod (World Bank) have posted What Drives the Global Land Rush? The abstract:
This paper studies the determinants of foreign land acquisition for large-scale agriculture. To do so, gravity models are estimated using data on bilateral investment relationships, together with newly constructed indicators of agro-ecological suitability in areas with low population density as well as land rights security. Results confirm the central role of agro-ecological potential as a pull factor. In contrast to the literature on foreign investment in general, the quality of the business climate is insignificant whereas weak land governance and tenure security for current users make countries more attractive for investors. Implications for policy are discussed.
December 30, 2011 in Agriculture, Comparative Land Use, Contracts, Density, Economic Development, Finance, Globalism, Property Rights, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)
Friday, November 18, 2011
From the Sustainable Communities folks at EPA:
New Partnership for Sustainable Communities Report:
Supporting Sustainable Rural Communities
The HUD-DOT-EPA Partnership for Sustainable Communities and the USDA has
just released Supporting Sustainable Rural Communities, a report that
discusses how the four agencies are collaborating to support rural
communities. This publication highlights how small towns and rural
places across the country are using federal resources to strengthen
their economies, provide better quality of life to residents, and build
on local assets such as traditional main streets, agricultural lands,
and natural resources.
The report includes sections on how HUD, DOT, EPA, and USDA programs
support environmentally and economically sustainable growth in rural
places; performance measures rural communities can use to target their
investments; and 12 case studies of rural communities using federal
resources to achieve their development and economic goals. It also
outlines steps the Partnership for Sustainable Communities is pursuing
to support small towns and rural places.
To read the report, please visit this website.
Jamie Baker Roskie
Wednesday, September 21, 2011
Michelle Wilde Anderson (Berkeley) has posted Dissolving Cities, forthcoming in the Yale Law Journal, 2012. The abstract:
During the twentieth century, 3,000 new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable number of cities were dying, closing down their municipal governments and returning to dependence on counties. Some were ghost towns, emptied of population. In those places, jobs were lost and families struggled; crops died off and industries moved on. A larger group of dead cities were humming with civic life: places with people but no longer with a separate government. In these cities, citizens from the political left and right, often in coalition, rose up to eliminate their local governments.
As an end in itself, understanding these changes would be worthwhile. But this past has not passed. An unprecedented groundswell of cities and citizens are currently considering disincorporation in response to economic crisis, tax pressure, and population loss. The dissolution law they are turning to, as it is written in state codes and as it is understood in theory, is immature and thin. Cities’ experiences with dissolution are unknown, constraining our ability to judge the values it serves or undermines. If dissolution is to grow in importance as part of the legal machinery of urban decline - as cities themselves are asking it to become - we must understand what it meant in the decades that passed before.
Dissolving Cities tells the story of municipal dissolution. It is an article of law, theory, and urban history - a reminder that urban growth and local government fragmentation, which have long dominated academic discourse on cities, may not be the upward ratchet we have assumed them to be. Cities can die (legally at least), and when they do, they raise critical questions about decline, governance, taxes, race, and community.
This is a critically important topic for the future of land use in American communities, and Prof. Anderson's article looks like a must-read piece.
Friday, September 16, 2011
Coming to the small screen. From the Hartford Courant: Brooke Shields To Star In Movie Based On New London Eminent Domain Case; Author Jeff Benedict Announces Deal On His Blog
"Little Pink House: A True Story of Defiance and Courage," a book written in 2009 by Jeff Benedict about the Fort Trumbull eminent domain decision in New London, is being made into a Lifetime TV movie starring Brooke Shields as the decision's most prominent opponent, Susette Kelo, according to an announcement made Friday on the author's blog, http://www.jeffbenedict.com.
Rick Woolf, Benedict's editor at Grand Central Publishing, confirmed the report. "We're thrilled that this is going to be a movie on Lifetime," Woolf said. "Susette is a folk hero and Jeff has done a tremendous job telling the story."
Wonder if they'll get John Cougar Mellencamp's permission to use "Pink Houses" for the soundtrack. Thanks to Jason Kercheval for the pointer.
Thursday, September 8, 2011
The South Bend Tribune reports that U.S. District Judge Robert Miller (NDIN) has granted a preliminary injunction sought by four local residents represented by the ACLU of Indiana. The plaintiffs object to the transfer of the former Family Dollar site, recently bought by the City for $1.2 M, to a local CDC that would turn it over to St. Joseph High School, a co-ed Catholic school which would use it for athletics and parking and had committed to accomodate requested public use for 10 years. (FD: my two older children recently began attending St. Joseph High School here in South Bend, shortly after I began my new post here at Notre Dame.) The local council had approved the acquisition and transfer on a 5-4 vote.
In the opinion, Judge Miller agrees with the plaintiffs that the transfer constitutes a direct subsidy to a religious institution in violation of the First Amendment's Establishment Clause. The Court distinguished recent school voucher program precedent by emphasizing that the below-market transfer by the City is not part of a program with religion-neutral criteria. To me, this point about the ad hoc nature of public-to-private land transfers makes the opinion an interesting land use case. It raises the question: Are religious institutions quarrantined from economic development land transfers even though (as the Court agrees) they are not from public benefits generally?
Related to this point is the nature of the endorsement of (a?) religion. With the qualification that I am not a First Amendment scholar, I did note that the Court found that the transfer violated the second prong of the Lemon test (you know, whether the action's primary effect is to advance/inhibit religion) Even though neither the City nor the plaintiffs thought the issue determinative, the Court disagreed. The Court implied in its ruling that the proposed transfer sends a message to adherents and non-adherents that they are insiders and outsiders respectively. Was that part-and-parcel of the Court's distinction between programmatic and ad hoc public subsidies?
I would be glad to hear from you. I will be following the developments with not-just-an-academic interest.
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 31, 2011
As May draws to a close, I’d like to thank the Land Use Prof Blog editors for what has been an enjoyable month of guest-blogging. This month has been a devastating one for Missouri. My first blog post of the month discussed legal issues surrounding the flooding of hundreds of square miles in Southeast Missouri, and this post examines land use questions facing Joplin, Missouri, in the wake of a tornado that ravaged much of that town on May 22.
Last Saturday, I went to Joplin to assist in a massive clean-up operation that is now underway. Despite watching plenty of television footage earlier in the week, I was startled at the degree of destruction. In the city’s most severely damaged neighborhoods, entire city blocks had been reduced to mere piles of debris. Without fences or buildings to segregate their respective rights, effected landowners were ignoring property boundary lines and working together in a desperate effort to recreate some semblance of order.
As we gathered rubble and piled it along roadsides and alleyways, it occurred to me that the tornado had temporarily suspended most property and land use laws in the area. Laws of trespass, nuisance, and encroachment had been set aside. Land that deeds, easements, covenants, and zoning restrictions had once sculpted into orderly middle-class neighborhoods had briefly reverted to a sort of regulated commons.
Of course, property rights enforcement will soon re-emerge in Joplin’s tornado-stricken areas for the same sorts of reasons as those famously described by Harold Demsetz in his article, Toward a Theory of Property Rights. As order gradually returns to Joplin, the city will need a strategy for rebuilding. Hopefully, Joplin’s civic leaders will learn from the experiences of other tornado-ravaged towns. An article published in the Kansas City Star last week discusses what Joplin might glean from Greensburg, Kansas—a town that has redefined itself as a cutting-edge “green” community after encountering its own tornado. A different article published in today’s Charlotte Observer describes the successes and failures of Wheatland, Pennsylvania, and Xenia, Ohio, in land use policymaking as those cities recovered from major tornado damage in years past. According to the article, Tuscaloosa, Alabama, has already appointed a 50-person task force to generate a recovery plan following that city’s April 27 tornado. Land use planning should play an important role as both Tuscaloosa and Joplin rebuild in the years ahead.
May 31, 2011 in Community Design, Comprehensive Plans, Development, Economic Development, Local Government, Planning, Property, Property Rights, Property Theory, Redevelopment | Permalink | Comments (1) | TrackBack (0)
Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.
Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.
Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.
The article introduces a symposium issue entitled Eminent Domain in the United States: Public Use, Just Compensation, & “The Social Compact.” Published participants include Steven Eagle, Gideon Kanner and Amy Lavine.
May 31, 2011 in Caselaw, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Property, Property Rights, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)
Monday, May 23, 2011
Among the more visible, lasting land-use legacies of the foreclosure crisis is an abundance of vacant REO (Real Estate Owned) properties held by foreclosing lenders. Tom Fitzpatrick (Federal Reserve Bank of Cleveland) has posted How Modern Land Banking Can Be Used to Solve REO Acquisition Problems in REO and Vacant Properties: Strategies for Neighborhood Stabilization (Federal Reserve Banks of Boston and Cleveland). Here's the abstract:
Modern land banks hold great promise as a dynamic community development tool that can help shrinking cities and local nonprofits overcome the two biggest challenges they face when trying to acquire REO property: interest in only a small number of properties and a lack of funding for acquisition. Practice provides us with a powerful example of their successes. As regions struggle to control their inventories of vacant, abandoned, or REO properties, they would be remiss not to consider the innovative modern land banking approach that is currently being employed in states like Ohio.
Thursday, April 28, 2011
Edward Glaeser (Harvard-Economics), Giacomo Ponzetto (Pompeu Fabra) and Kristina Tobio (Harvard-Kennedy) have posted Cities, Skills, and Regional Change. Here's the abstract:
One approach to urban areas emphasizes the existence of certain immutable relationships, such as Zipf's or Gibrat's Law. An alternative view is that urban change reflects individual responses to changing tastes or technologies. This paper examines almost 200 years of regional change in the U.S. and finds that few, if any, growth relationships remain constant, including Gibrat's Law. Education does a reasonable job of explaining urban resilience in recent decades, but does not seem to predict county growth a century ago. After reviewing this evidence, we present and estimate a simple model of regional change, where education increases the level of entrepreneurship. Human capital spillovers occur at the city level because skilled workers produce more product varieties and thereby increase labor demand. We find that skills are associated with growth in productivity or entrepreneurship, not with growth in quality of life, at least outside of the West. We also find that skills seem to have depressed housing supply growth in the West, but not in other regions, which supports the view that educated residents in that region have fought for tougher land-use controls. We also present evidence that skills have had a disproportionately large impact on unemployment during the current recession.
Wednesday, March 30, 2011
The latest census figures from Detroit (Chad's hometown blogged about here and here) have inspired the New York Times to solicit opinions from several urban planning experts about the way forward for post-industrial cities confronted with large-scale property abandonment. Jennifer Bradley (Brookings-MPP) and Terry Schwarz (Kent State's Cleveland Urban Design Collaborative) each offer shrinking city visions that challenge the idea that all planning must be for demographic expansion and economic growth. Their greening strategies, including attention to urban agriculture and ecosystems, contemplate a 'new normal' for cities that may, in some ways, be better than historical peak periods.
Richard Florida (Toronto-Business) and Sam Staley urge beleaguered areas to pursue a focused (and apparently unsubsidized) effort to retain and attract residents in a mobile society. Still others, such as Toni Griffin (Harvard-Planning), see Detroit and similar cities as merely the most egregiously wounded casualties of unsustainable sprawl-promoting policies that must be changed throughout the U.S. These brief articles and even the comment board are all worth checking out. (Hat Tip to Nicole Garnett (Notre Dame) and her student, Sean Ashburn)
I would also encourage those interested in working with the land use challenges faced by undercrowded, post-industrial cities to check out The Center for Community Progress (f/k/a National Vacant Properties Campaign). Over the years, I have had the chance to participate in conferences and technical assistance efforts that have brought urban development practitioners together with experts such as Jennifer Bradley, Terry Schwarz, Kermit Lind (Cleveland State), Joe Schilling (Va. Tech-Metropolitan Inst.) and CCP's co-founder, Frank Alexander (Emory).
March 30, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Crime, Density, Detroit, Development, Economic Development, Planning, Redevelopment, Smart Growth, Sustainability | Permalink | Comments (0) | TrackBack (0)
Sunday, March 27, 2011
This blog has had the good fortune to feature the amazing work of Cleveland-Marshall's Urban Development Law Clinic (here and here, too) as well as dispatches from the front lines of the foreclosure fallout in Cleveland's neighborhoods from the Clinic's outgoing director, Kermit Lind (Cleveland State). Kermit has now posted Can Public Nuisance Law Protect Your Neighborhood from Big Banks?, 44 Suffolk L. Rev. 89 (2011). Here's the abstract:
One manifestation of the mortgage crisis of the past decade is the destabilization of housing markets and neighborhoods where mortgage defaults were concentrated. As banks and their mortgage servicers employ business practices that result in banks or their agents controlling or owning vacant dwellings, the noncompliance with housing and other municipal codes by these institutional absentee owners presents neighborhoods and cities with a huge and costly public nuisance problem.
This article explores both the theory of public nuisance law and the experience of applying nuisance law in practice to mitigate the harmful consequences of bank debt collection and REO management. It looks at how and to what extent public nuisance law provides protection for those non-defaulting homeowners whose health, safety and welfare are threatened by the business practices of big banks. It compares litigation that applies public nuisance law in different ways to distinguish viable uses from unsuccessful uses of public nuisance law doctrine. The recent efforts to use public nuisance law against manufacturers and marketers of harmful products like guns and tobacco are distinguished from the application of public nuisance law against owners of real estate maintenance deficiencies are in violation of laws protecting the public health, safety and welfare.
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)