Land Use Prof Blog

Blumm & Wigington on the Oregon and California Railroad Grant Lands

Michael C. Blumm (Lewis & Clark) and Tim Wigington have posted The Oregon and California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict, forthcoming at 40 Boston College Environmental Affairs Law Review No. 1 (2013).  The abstract:

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the George W. Bush Administration’s unsuccessful attempts to change the compromise reached in the NWFP. The article then explains how decreases in timber harvesting and declines in federal payments have brought the counties reliant on these lands to the brink of bankruptcy, and analyzes two current legislative proposals aimed at increasing harvests on the O&C lands in order to bolster flagging county economies. The article concludes by identifying significant economic and environmental flaws in these proposals and suggests several alternative revenue-producing options that could provide economic security and diversity to the counties without eviscerating the key environmental protections provided by the NWFP and other federal environmental protection statutes.

The article looks like a fascinating interdisciplinary blend of law, policy, and history. 

Matt Festa

Happy May Day

It's May 1, 2012, and that means a few different things around the world.  Regular readers know that we like to do the occasional holiday-themed post on related land use issues, but this one needs to be disaggregated!

The original May Day celebrations were pagan rituals throughout Europe, particularly in Celtic, Germanic, and other Northern European societies.  These tended to focus on the traditional spring/early summer themes of rebirth and fecundity, with venerations of the deities of earth and flowers and so on.  As Christianity spread, the Church tended to co-opt these pagan celebrations, which continued the tradition of Maypoles and public festivities.  This tradition obviously relates to land use in its focus on the renewal of the earth and its bounty going into the new summer.

Then in the late nineteenth and early twentieth centuries, May Day became a nearly universal labor holiday known as International Workers Day, as well as a day that became associated with socialism and communism.  Because the American Labor Day is not until September, I always assumed that this must have some European or Soviet origin.  But my exhaustive Wikipedia-based research for this post led me to realize that May 1 as International Workers Day originated right here in the U.S. of A., thanks to the 1886 Haymarket Riots in Chicago, where police fired shots into the crowd at a worker's strike after a bomb exploded.  This galvanized the interational labor movement, which led the Second International to declare May 1 as International Workers Day in 1889.  In fact, the reason the American Labor Day is set in September seems to have been a desire to disassociate it with the Haymarket anniversary.  Any time we're talking about riots, strikes, public demonstrations, or urban politics, there is always a host of land use issues involved.

The theme of May 1 as an international labor day has led some of the Occupy Movement to plan to Occupy May 1 to urge a general strike and as a chance to relaunch their protest movement in cities around the world.  The Occupy Movement deserves some further study for the interesting land use issues it presents, both in terms of its attempts to, well, "occupy" public and private spaces in cities, and also for its organization of those spaces-- I have heard from more than one observer that in some of the Occupy encampments they have instituted an informal sort of zoning apparatus.  At this hour it seems that the Occupy May Day affairs have been generally peaceful. 

Another prominent commemoration of May 1 in the U.S. comes with Law Day.  While not widely known outside the legal profession, bar associations across the land have programs to celebrate and educate members on the importance of law (e.g., today I went to the local bar's Law Day banquet to recognize a major award earned by one of my students).  Land use law being a field of growing importance in the profession, it goes without saying that any commemoration of law generally should include a nod to those who practice land use law in our communities.  I had thought that Law Day was mostly an inside-baseball event for lawyers and bar organizations, but again (thanks to Wikipedia) I just learned that the origin of Law Day was really an anti-communist maneuver.  In response to the growing importance of May 1 in the communist and particularly the Soviet sphere (think back to parades of tanks and nuclear missiles down the central square), President Eisenhower declared the first Law Day as a celebration of the rule of law and its critical importance to democracy and civilization.  The commemoration of Law Day is codified at 36 U.S.C. 113.

So whether you celebrate May 1 for it's pagan/Christian celebration of earthly renewal; it's relevance to the international labor movement and urban politics; or for it's commemoration of the importance of the rule of law in society, May Day has an important relationship with land use.  The last use of the term "Mayday," as a distress signal, comes not from the first day of this month, but rather from the French venez m'aider (come help me).  The only academic connection I can think of from that usage, however, is that it is perhaps being muttered right now by the students who are taking my exam tomorrow.

Matt Festa

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

Matt Festa

Ziff on The Great Onyx Cave Cases

This looks like a fascinating legal history/land use story.  Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases--A Micro-History.  The abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.

Matt Festa

Happy Dyngus Day!

I hope you all have had a happy holiday--not Passover or Easter, which were celebrated this weekend-- but rather today's holiday: Dyngus Day!  Readers know that we like to do the occasional holiday land-use post, so here goes. 

Dyngus Day is an east-central European tradition, primarily from Poland, that is celebrated on Easter Monday.  It appears to come from a pre-Christian veneration of the pagan gods of water (Dingus) and earth (Smigus).  It's linked to the spring themes of rebirth, renewal, and even "spring cleaning."  Apparently the tradition is that on Dyngus Day the young men get to pursue the young women whom they wish to court with buckets of water and willow branches.  Today, both sexes can participate and there seems to be much use of squirt guns and water balloons. 

What's the land use angle?  Well, first, the whole seasonal/earth/water/renewal theme resonates with the land.  But the next chapter of the Dyngus Day story is how it flourished in America from the height of 19th Century Polish immigration to today, and that story involves the same local government and politics issues that are familiar to land use observers.  Dyngus Day first became a big deal in northern U.S. cities with large Polish-American immigrant populations.  The sources I've read haven't quite come out and said so, but my impression is that the original American Dyngus Day celebrations probably had the intention of serving as the Polish-American equivalent of an ethnic pride/civic engagement day along the likes of what St. Patrick's Day was for the Irish and Columbus Day for the Italians.  Dyngus Day traditionally involved a mix of festival and politics, such as when RFK gave an important campaign speech at the West Side Democratic Club's Dyngus Day affair in South Bend, Indiana.  So Dyngus Day is part of the great American history of urban politics and local government.

In the last couple of decades there seems to have been something of a Dyngus Day revival.  Buffalo is leading the way on the Dyngus front.  It claims to have the world's largest Dyngus Day festival.  There are also significant Dyngus events in Cleveland, Pittsburgh, South Bend, Milwaukee, and other cities.  Of course these community events require the involvement of planners, street closures, and permits.  The Buffalo Dyngus Parade is a centerpiece, and everyone knows that civic parades have land use implications.  They even have a facebook page.  Mostly, it's just a good time, an important community event, and a good example of local public-private cooperation.

I studied a lot of Polish history as an undergraduate, and I have my own fond memories of one Easter Monday striking out away from campus into South Bend (once one of the world's largest Polish-speaking cities), seeing the parade, and ending up down at the American Legion's Dyngus Day party, with good kielbasa, pierogies, and music.  Remember, Everybody's Polish on Dyngus Day!

Matt Festa

What's Buried Under Dodger Stadium?

A front-page story in today's LA Times throws some cold water on the celebratory mood surrounding the recent sale of the Los Angeles Dodgers and the upcoming 50th anniversary of Dodger Stadium in Chavez Ravine. The story recounts how the city of Los Angeles acquired the land to build the stadium by uprooting (through the use of eminent domain) more than 1,000 mostly Mexican-American families who lived in the area.  The story concludes with a chilling quote from one of the uprooted: "There's an old Mexican custom that where you're born, the umbilical cord is buried. Mine's buried under third base....And I hate home runs, 'cause every time they step on third base, my stomach hurts."  The story of Chavez Ravine has been well told before, including by my friend Matt Parlow in his article Unintended Consequences: Eminent Domain and Affordable Housing, 46 Santa Clara L. Rev. 841, 843–46 (2006).

Ken Stahl 

Smith on Property as the Law of Things

Henry E. Smith (Harvard) has posted what looks to be a very important property theory piece, Property as the Law of Things, forthcoming in the Harvard Law Review.  The abstract:

The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.

Matt Festa

The Greatest Grid: New Exhibit at the Museum of the City of New York

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:

The major goal of the grid system was to enable the construction of cheap housing in a growing city.  In 1811, most of the settlement in Manhattan was limited to the island's southern tip.  North of that the land was broken up into large, irregularly shaped estates, such as this one:

 

The plan's architects believed that breaking up large parcels of land into smaller, more regularized and accessible parcels would encourage the development of smaller, mass-produced, and, hence, cheaper, housing. 

Judged on these terms, the plan worked brilliantly.  The exhibit illustrates this with a fascinating discussion of the estate of Clement Clarke Moore, known as the author of “Twas the Night before Christmas."  Mr. Moore was the owner of a very large estate on Manhattan's west side called Chelsea (now a fashionable neighborhood of the same name).  Moore initially opposed the division of his estate into small rectangular parcels, but he eventually accepted the inevitability of the grid and began subdividing and selling off small lots for housing, just as the authors of the grid plan anticipated.  Moore's subdivision map for Chelea is below, and property nerds will note that Moore included restrictive covenants on all the lots, as indicated by the barely-readable text on the lower right-hand side prohibiting "nuisances of any kind" and the like: 

 

As this map shows, the grid system encouraged (although it did not mandate) lots about 100 feet deep (1/2 block in length) and 20 feet wide for a regular dwelling.  This way every unit would have access to sunlight from one side.  Larger facilities would have wider lots at the same depth, and seminaries occupied an entire block.  Similarly, the grid encourages a pattern in which buildings within a block are connected to each other to create a uniform street wall with a single vista leading out to the horizon.

In this way, although the grid was not aimed at affecting design, it had a powerful aesthetic impact, effectively encouraging a uniformity of design much as the later 1916 zoning resolution did.  

Although the grid system provided a windfall for landowners like Moore, many landowners were very hostile to the grid scheme, seeing it as part of a land grab.  The surveyors who came north to lay down markers for future intersections were often met with jeers or worse, and landowners were known to sabotage the markers.  Eventually, the city began to use huge, heavy markers that were imbedded deeply into the ground so they could not easily be uprooted by angry landowners.

It's not hard to see why many landowners opposed the grid system.  Manhattan was very hilly terrain, but the roads were laid out at a low, flat grade.  As a result, many homes, especially those located at new intersections, were left lurching on a precipice, as here:

As you can see, although Manhattanites and the rest of us have accepted the grid as a matter of course, perhaps as an inevitable product of modernity, it was a massive disruption of daily life (and property rights) at the time and required some pretty heavy-handed government intervention to accomplish.  I'll have more thoughts on the exhibit later.

Ken Stahl

Byrne on the Contemporary Role of Preservation Law in Urban Development

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.

Matt Festa

Somin on What if Kelo had Gone the Other Way?

Ilya Somin (George Mason) has posted What if Kelo v. City of New London had Gone the Other Way?, published at Indiana Law Review, Vol. 45, No. 1, pp. 21-39, 2011 (What If Counterfactuals in Constitutional History Symposium) .  The abstract:

Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.

Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.

Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.

Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.

Matt Festa

Salkin on Callies on Regulation in Hawai'i

Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Matt Festa

Happy Leap Day

Hey everyone, it's February 29th, and that doesn't happen every year.  So Happy Leap Day! 

Some of you who follow the blog might recall that we like to do a holiday post now and then about the land use angles of the tradition-- like on Christmas, Thanksgiving, Halloween, Columbus Day, St. Patrick's Day, Veterans Day, Martin Luther King Day, and even Groundhog Day.  Today is the first chance I've had since relaunching the blog in 2009 to consider Leap Day, so it's time to add Feb. 29 to the list.  I must admit, however, that coming up with a land use angle for Feb. 29 looked like a bit of a challenge.  But I take pride in my skill at the game my students call "What Can't Festa Turn into a Land Use Story," so here goes:

First, it's an Irish tradition (supposedly), going back to the times of St. Patrick and St. Bridget, that on the quadrennial occurrence of Leap Day, the women get to make marriage proposals to the men (the legend is probably the progenitor of Sadie Hawkins Day).  In a traditional feudal society with a land-based economy and social structure, with primogeniture and entailments controlling the land, this social inversion could have a significant effect on how feudal power and family wealth get organized.  If it ever actually happened, that is . . . I'm skeptical, but the legend seems to have enough purchase to back the 2010 Amy Adams movie Leap Year. 

A second land use tie-in is related to the appellation "Leap" Day/Year.  LEAP is also an acronym that stands for "Land-use Effects on Amphibian Populations."  It's a multi-regional collaboration sponsored by the National Science Foundation.  Academic research programs were established at Missouri, Maine, and South Carolina.  And lest you think that I'm stretching here, many organizations today are using the occasion of Leap Day to celebrate Amphibians.  Amphibian Ark has rolled out an international campaign for Leap Day:

To coincide with Leap Day (February 29th) 2012, Amphibian Ark is launching a new international event, Leaping Ahead of Extinction: A celebration of good news for amphibians in 2012.

The event’s been timed to coincide with Leap Day (29^th February) 2012, and will promote the great successes in the conservation of amphibians in captivity and in the wild. The focus will be on institutions that are managing amphibian rescue or supplementation programs, recommended either during an AArk conservation needs assessment, or by national governments or field experts.

Many zoos, wildlife and conservation organizations, and even Disney are also getting into the spirit with Leap Day events for amphibians.  Hopefully they won't get too jumpy in Calaveras County.

Once again, a special day with a land use angle!  Kind wishes to our amphibian friends, especially if a princess proposes to one.

Matt Festa

UPDATE: The "Leap Day" observance is broader than I had thought, and implicitly with the amphibian connection too-- I'm getting emails imploring me to take advantage of the Leap Day discounts from the excellent LeapFrog brand of learning toys that my son enjoys.  You know you've arrived as an American holiday when businessess try to commemorate it by selling stuff.  Like the old "life, liberty, and no money down!" type of sales promotions. 

UPDATE 2: For yet another land use angle, DOT Secretary Ray LaHood tells us that we should "Leap Into Safety" today by investigating our states' pipeline profiles. 

Supreme Court opinion on PPL Montana

The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana.  The opinion is here. 

A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue. 

Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year.  We previewed the oral argument here.  SCOTUSblog has, as always, a great roundup of early analysis and links. 

I look forward to hearing more discussion of this important land use case in the near future.

Matt Festa

Walter Russell Mead on the Crisis of the American Dream

Walter Russell Mead (Bard College) has posted a fascinating essay at The American Interest called Beyond Blue Part One: The Crisis of the American Dream.  An excerpt:

I’ve written in earlier posts about the shift from the first American Dream to the second: from the family farm to the suburban “homestead.” It was a profound change in American life and culture that has not yet been fully explored.  The family farm integrated production and consumption, work and leisure, family and business.  The family wasn’t just a union of sentiment: it was an element of production.  Mom and Dad worked as a team to feed, house and clothe the family, and as the kids grew up they took on greater and greater responsibilities in the common effort.  Their lives at home prepared them for the new lives they would lead on their own: the kids would grow up, marry, and start farms.

The 20th century suburban homestead was a very different place. 

This is almost exactly the theme of an article I am writing, so naturally I find it interesting!  Mead's essay ranges well beyond land use, but his grounding of the "American Dream" in patterns of living and social organization speaks to how incredibly relevant land use models are to the compelling issues facing American society in the 21st Century.

Matt Festa

Charles M. Haar, RIP

From Michael Allan Wolf comes the sad news that Charles M. Haar has passed away.  Haar, the Louis D. Brandeis Professor Emeritus at Harvard Law School, was one of the true giants of legal scholarship and teaching in the fields of land use and local government.  From the Harvard tribute:

Professor Emeritus Charles M. Haar ‘48, a pioneer in land-use law whose scholarship focused on laws and institutions of city planning, urban development and environmental issues, died on January 10, 2012. He was 91.

During his more than five-decade career, Haar influenced urban policy and planning throughout the country, drafted key legislation for inner city revitalization, developed influential legal theories to support equality of services for urban dwellers and access to suburbs, helped pioneer the modern environmental movement, and mentored a generation of scholars and activists.

“Charles Haar was a genuine pioneer who created new ways of making scholarship relevant to the improvement of the human condition through the improvement of the environment,” observed Harvard Law School Dean Martha Minow. “He was a visionary leader in the field of land use law and urban planning with a focus on improving the lives of all Americans, regardless of race or economic status. His legacy includes major tenets of the modern-day environmental movement and the way we teach and study environmental law. It also includes the generations of students to whom he was a mentor and friend, and the contributions they made after learning from him. He will be deeply missed.”

Please read the whole thing for a full appreciation of Professor Haar's amazing contributions to teaching, scholarship, and service.  He served the legal profession and the nation in numerous ways, from his WWII military service, to extensive participation in professional organizations, to service to presidential administrations and legislation-drafting.  His scholarship has been incredibly influential.  I am currently in the middle of reading his 1990 book Zoning and the American Dream: Promises Still to Keep (with Jerold S. Kayden) which is just one of his many important books, casebooks, and treatises.  Testimony from his students and colleagues, such as Prof. Wolf, speaks to his deep humanity and profound influence as a teacher and mentor.

We are all in a great debt to Charles M. Haar as one of the pioneers of land use law in scholarship and practice.  Professor Haar was instrumental in creating the field that we now know as land use law.  "Land Use" has strong doctrinal and practical ties to property law, state & local government law, environmental law, and other fields; but it has only been because of the work of Professor Haar and his colleagues and students that Land Use Law has been recognized as its own separate field of study and practice in law, and as an important part of our society.  May we all be inspired to serve by the example of Charles M. Haar.

Matt Festa

Martin Luther King, Civil Rights, and Housing

Hope everyone had a good Martin Luther King Day yesterday.  An important part of Dr. King's legacy is his involement in advocating against de facto residential segregation and for fair and affordable housing as part of a broader conception of civil rights.  On this issue, King did more than make speeches-- he actually moved his family's home.  From the Chicago Encyclopedia:

King relied on his lieutenant James Bevel to energize the first phases of the campaign, but in January 1966 he captured national headlines when he moved his family into a dingy apartment in the West Side ghetto. It was not until June that King and his advisors, under pressure to produce results, settled on a focus for the Chicago movement. King himself participated in two dramatic marches into all-white neighborhoods during a two-month open-housing campaign during the summer of 1966. These fair-housing protests brought real estate, political, business, and religious leaders to the conference table for “summit” negotiations.

And the Chicago Tribune:

The marches led to an accord that year between the protesters and the Chicago Real Estate Board. The board agreed to end its opposition to open-housing laws in exchange for an end to the demonstrations. Before he left town, King said it was "a first step in a 1,000-mile journey."

A journey that still continues.

UPDATE: Steve Clowney at Property Prof links to an opinion piece on Dr. King's legacy and fair housing in New Jersey today.

Matt Festa

Wolf on the Supreme Court and the Environment

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

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

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

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

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

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

Matt Festa

Davidson on a Hamiltonian Vernacular as a Social Function of Property

Nestor M. Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property, Fordham Law Review, Vol. 80 (2011).  The abstract:

This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.

Absolutely fascinating-- an original insight that makes an important contribution to our understanding of early republic property theory and its implications for property law today.

Matt Festa

Senik on Direct Dysfunctionality (initiative & recall)

Last month I posted a rant on Election Day and State Constitutions based on the referendum for new Texas constitutional amendments; Ken Stahl posted a thoughtful response with a qualified defense of direct democracy in ballot-box zoning, which set forth some thoughts that he more fully elaborates in his excellent article The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, and Judicial Review. 

My complaints--prompted by my frustration with a slate of ten poorly-articulated and confusing process amendments for which the State Legislature required a nominal thumbs-up from the people-- were more focused on (1) statewide (more than with local) lawmaking through referenda; and (2) the over-constitutionalization of public policy in fundamental state law.  Troy Senik has written an article for City Journal that articulates some of the points of this (hardly original) critique: Direct Dysfunctionality: California celebrates 100 years of the initiative, referendum, and recall. 

Golden State voters can approve or reject public-policy changes at the ballot box through the use of the initiative and referendum. They can also remove unpopular elected officials with the less frequently employed recall, made famous when it chased out Governor Gray Davis in 2003. While nearly half of U.S. states have an initiative process of some kind, nowhere is it as central to the political process as in California, where, in 2010 alone, 14 issues appeared on the ballot. As a result, voters constitute a de facto fourth branch of government. . . .

These measures were introduced in the salad days of the early Progressive movement, when California Governor Hiram Johnson (who would eventually serve as Theodore Roosevelt’s running mate on the Bull Moose presidential ticket of 1912) pressed for their implementation as a firewall against political domination by special interests—particularly those of the well-heeled railroads. . . .

But statewide direct constitution-making has its problems:

Expediting policy shifts, however, is a relatively modest benefit in exchange for the dramatic cost of the initiative process: inducing widespread public-sector sclerosis. Rather than simply providing an outlet for popular grievances, direct democracy actually annexes huge swaths of policymaking from the legislature. When voters mandate a policy directive from the ballot box, the legislature has no way to override the decision, even by supermajority. As a result, any issue that voters weigh in on directly becomes their exclusive purview in perpetuity—amendable or repealable only by another popular vote. This also has the ironic effect of slowing down the democratic process that the initiative system is supposed to make more responsive, ensuring that policy shifts can only come on election days spread years apart. And many of the ballot measures take the form of constitutional amendments, a trend that has given California the unenviable distinction of having the third-longest constitution in the world, after India and (believe it or not) Alabama. Because altering the state’s foundational political charter only requires a simple majority, California ends up inhabiting a bizarro world where it’s relatively easy to amend the constitution but can be nearly impossible to alter basic public policy.

So as with any political process tool, it's a mixed bag with some good things that can be contorted into bad results; my tentative thesis is that direct democracy is less effective the broader the polity (i.e. state vs. local) that engages in it.  I know, James Madison and others had something to say about this too. 

Soon I'll blog about an interesting local-government direct democracy land use requirement that is a little different from the ones that Ken has written about. 

Matt Festa

Reiss on Glaeser on the City

David Reiss (Brooklyn) has posted a review of Harvard economist and urban theorist Edward Glaeser's new book. Book Review: Edward L. Glaeser, Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier (The Penguin Press 2011), forthcoming in Environment and Planning (2012).  The abstract:

It is always a bit unnerving to read someone else’s love letters, but even more so, when you have the same object of desire. Edward Glaeser’s TRIUMPH OF THE CITY is a love letter to cities and to New York City in particular. Glaeser provides a theoertical framework of the city, arguing that “Cities are the absence of physical space between people and companies. They are proximity, density, closeness.”

Glaeser prescribes three simple rules to protect the vitality of the urban environment: First, cities should replace the current lengthy and uncertain permitting process with a simple system of fees. Second, historic preservation should be limited and well defined. Finally, individual neighborhoods should have some clearly delineated power to protect their special character.

While Glaeser does not fully justify his set of rules, he does provide a thought-provoking discussion of the consequences of not following them. If you were to take nothing else from TRIUMPH OF THE CITY, you should attend to its cri de coeur: “the real city is made of flesh, not concrete.” But, notwithstanding its limitations, the book offers much, much more than that. It challenges broadly held beliefs and presents a theory of the city that helps to evaluate urban policy proposals with a clear eye.

Matt Festa