September 01, 2011
Learning from Brooklyn
Before I got co-op approval on my rental in Forest Hills, Queens (where I now live), I spent a week or so sharing apartments and houses in Boro Park and Canarsie. These are two very different neighborhoods, but from a planning perspective both are of some interest.
I spent the weekend of August 4 sharing an apartment in Boro Park. Boro Park is a heavily Hasidic neighborhood teeming with large families in a zip code with over 75,000 people per square mile, almost three times the NYC average. Some commentators argue that density and large families are inconsistent- but Boro Park shows otherwise. In Boro Park, the average age is 29, well below the statewide average (35).
Then I spent a few days at a bed and breakfast in Canarsie, at the eastern edge of Brooklyn (that is, the part furthest from Manhattan). Canarsie has been hit with many of the major bad urban planning ideas of the 50s and 60s: it includes a couple of housing projects, is not too far from another, and is mostly cut off from the water by an expressway. And because it is so far from Manhattan, it is not appealing to people looking for short commutes.
Not surprisingly, Canarsie has never been a wealthy neighborhood; at some point in the late 20th century it transitioned from a Jewish/Italian working class area to a Caribbean-American working class area. But it is by no means one one of Brooklyn’s worst neighborhoods. Canarsie's poverty rate is lower than the Brooklyn average, and I was willing to walk through the public housing on the way to the subway; even though I wouldn’t do it at night it doesn’t seem threatening during the day.
To me the interesting questions in Canarsie aren't what went wrong: they are: what went right? And given the decline of many inner suburbs, does Canarsie have a future?
August 27, 2011
Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).
But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.
The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.
Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.
If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.
Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.
UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.
August 17, 2011
City Journal on Private Funding for New York's Parks
The renaissance of many of New York's parks--such as Central Park and Bryant Park--after decades of neglect has been one of the more visible urban sucess stories of the last decade or so. In a City Journal piece titled Parks and Re-creation: How private citizens saved New York's public spaces, Laura Vanderkam attributes this to the innovative public-private partnerships that were created to finance and manage them outside of the City's parks bureaucracy:
But perhaps the most amazing thing about Central Park is how little tax money goes into maintaining it. Though it is still ultimately the city’s responsibility, the park has been managed since the 1980s by the nonprofit Central Park Conservancy, and it relies on private donations for most of its budget. The marriage between the city and the Conservancy has been a fruitful one. Can this model, known as a public-private partnership, restore and invigorate all of New York’s green spaces, including neighborhood parks in less affluent areas? It’s an important question, not only as the city faces tough fiscal times but as urban planners increasingly view parks as tools of economic development and public health.
August 07, 2011
America's Top 10 Walkable Cities, 2011
Or so says WalkScore, according to this article America's Ten Most Walkable Cities of 2011, by Jason Notte in The Street. A lot of the usual suspects are on the list, which you can see by clicking over to the story. Also interesting is the description of Walk Score:
The people behind Walk Score, a Seattle-based service that rates the convenience and transit access of 10,000 neighborhoods in 2,500 cities, have spent the past four years judging the distance between residents and amenities and ranking places based on the results. That "walkability" led to the first set of rankings in 2008 and the use of those rankings by more than 10,000 cities, civic organizations and real estate groups in the years that followed.
Once something becomes measurable, then you have numers that start to play a role in policy debates, budgets, and markets. I suspect we'll see even more use of metrics and quantitative analysis in areas like livability, sustainability, and so on in the years to come.
I'm not familiar with their methodology, but if you go to the Walk Score website you can check out the walkability score for your own address. Mine: 68 ("somewhat walkable").
Thanks to Mubaraka Saifee for the pointer.
July 10, 2011
Closed Pools a Sign of Deeper Local Problems
From The New York Times, an article about the struggles local governments face in keeping their public pools open:
There are few things in life more doleful than a child looking at a closed pool on a steamy summer day, and yet that sad scene has become as common as sunburns and mosquito bites as struggling local governments make the painful choice to shut their pools to save the budget. The list of locales where public pools have been in jeopardy in recent years includes some of the sweatiest spots in the nation, including Central Florida (90s and humid on the Fourth), Atlanta (90), and Houston (97)...
The question of where pools are closed often raises issues of class and race. In the case of Houston, one of the pools closed in June was in Independence Heights, a historically black neighborhood where the median household income in 2009 was about $27,000, according to city statistics.
The city councilman for the area, Ed Gonzalez, said the loss of a pool there would sting worse than in more well-to-do neighborhoods. “There are no other true community assets out there,” he said. “Your neighborhood park and your pools are the only real amenities that some of these communities have.”
Mr. Gonzalez, a former police officer, said it was not just a matter of letting people beat the heat. The lack of a local pool, he said, could have an impact on public safety. “If kids do not have a productive thing to do, like swimming or community centers to go to,” he said, “it’s more idle time they have on their hands.”
Here in Athens the Leisure Services department seems to be doing a good job keeping the pools open, but we went without a public fireworks show this year due to lack of sponsorship. While these types of amenities are hard for local governments to support in tough economic times, they are also key to a community's quality of life. It will be interesting to see how deep communities will dig to maintain the rituals of summer in these difficult days.
Jamie Baker Roskie
June 28, 2011
A Reversal of the Great Migration
If you haven't already used up your June allotment of free articles on The New York Times website, you might find this article interesting. It's entitled "For New Life, Blacks in City Head South." An excerpt:
Life has gone full circle,” said Ms. Wilkins, whose grandmother was born amid the cotton fields of North Carolina and moved to Queens in the 1950s.
“My grandmother’s generation left the South and came to the North to escape segregation and racism,” she said. “Now, I am going back because New York has become like the old South in its racial attitudes.”
Many black New Yorkers who are already in the South say they have little desire to return to the city, even though they get wistful at the mention of the subways or Harlem nights.
Danitta Ross, 39, a real estate broker who used to live in Queens, said she moved to Atlanta four years ago after her company, responding to the surge in black New Yorkers moving south, began offering relocation seminars. She helped organize them, and became intrigued.
Ms. Ross said she had grown up hearing stories at the dinner table about segregation. She said the Atlanta she discovered was a cosmopolitan place of classical music concerts, interracial marriage and opulent houses owned by black people.
A single mother, she said that for $150,000, she was buying a seven-room house, with a three-car garage, on a nice plot of land.
Ms. Ross said she had experienced some culture shock in the South, and had been surprised to find that blacks tended to self-segregate, even in affluent neighborhoods.
She said that the South — not New York — was now home.
“People in Georgia have a different mind-set and life is more relaxed and comfortable here,” she said. “There is just a lot more opportunity.”
I'm a bit suprised by this trend, given that unemployment in Georgia, particuarly among blacks, remains very high. But, cost of living and pace of life do account for a great deal. Still, it's a interesting reversal of a very long trend of northern migration.
Jamie Baker Roskie
May 24, 2011
Has Preservation Become a Dangerous Epidemic?
" . . . And is it destroying our cities?" That's how this NY Times piece starts out, but it isn't an anti-HP property rights screed. It's an exhibition review of "Cronocaos," at the New Museum: An Architect's Fear that Preservation Distorts.
That’s the conclusion you may come to after seeing “Cronocaos” at the New Museum. Organized by Rem Koolhaas and Shohei Shigematsu, a partner in Mr. Koolhaas’s Office for Metropolitan Architecture, the show draws on ideas that have been floating around architectural circles for several years now — particularly the view among many academics that preservation movements around the world, working hand in hand with governments and developers, have become a force for gentrification and social displacement, driving out the poor to make room for wealthy homeowners and tourists.
Mr. Koolhaas’s vision is even more apocalyptic. A skilled provocateur, he paints a picture of an army of well-meaning but clueless preservationists who, in their zeal to protect the world’s architectural legacies, end up debasing them by creating tasteful scenery for docile consumers while airbrushing out the most difficult chapters of history. The result, he argues, is a new form of historical amnesia, one that, perversely, only further alienates us from the past.
In New York, the exhibition is in an old restaurant supply store adjacent to the museum, with a line drawn down the middle; one side has been "renovated" and the other left "raw and untouched."
The result is startling. The uneven, patched-up floors and soiled walls of the old space look vibrant and alive; the new space looks sterile, an illustration of how even the minimalist renovations favored by art galleries today, which often are promoted as ways of preserving a building’s character, can cleanse it of historical meaning.
Interesting. One other point the architect makes is that preservation can be selective in what periods and styles ought to be preserved:
This phenomenon is coupled with another disturbing trend: the selective demolition of the most socially ambitious architecture of the 1960s and ’70s — the last period when architects were able to do large-scale public work. That style has been condemned as a monstrous expression of Modernism. . . . To Mr. Koolhaas, these examples are part of a widespread campaign to stamp out an entire period in architectural history — a form of censorship that is driven by ideological as much as aesthetic concerns.
May 19, 2011
Ramapo Village Spent $450,000 in Losing Battle over Discriminatory Zoning
Most land use professors are familiar with the town of Ramapo, New York, whose phased-growth program was upheld as constitutional nearly 40 years ago. Among other things, the court in the famed Ramapo case found that the town’s program was “far from being exclusionary” and sought only to “provide a balanced and cohesive community.” Interestingly, certain land use controls in one Ramapo village have proven far more vulnerable to constitutional challenge for their exclusionary effects.
Recently, the Village of Airmont (which is located within Ramapo) settled a lawsuit filed under the RLUIPA and Fair Housing Act relating to the Village’s zoning prohibition on boarding schools. The Manhattan U.S. Attorney’s office brought its claim against the Village back in 2005 after the Village denied a permit application from the Hasidic Jewish Congregation Mischknois Lavier Yakov to construct a religious boarding school in the community.
According to recent stories in the Wall Street Journal and elsewhere, the Village finally settled the lawsuit a couple of weeks ago after expending more than $450,000 in legal fees. The May 9 consent decree formalizing the settlement gives the Village until October 15, 2011, to amend its zoning code to allow construction of the religious school and to otherwise bring its code into compliance with federal laws “prohibiting discrimination and unreasonable imposition on religious freedom.”
This isn’t the first time that Airmont has effectively lost a discriminatory zoning claim. According to the New York Times, the Village previously had to amend its zoning ordinances in response to a 1991 Fair Housing Act claim contesting a zoning prohibition on the use of private homes as places of worship.
These constitutional zoning challenges in the decades following the Ramapo case offer at least some support for the theory offered by Fred Bosselman back in the 1970s (see generally 1 Fla. St. L. Rev. 234, 248-50 (1973)) that exclusionary motives were partly behind the town’s famous phased-growth scheme.
May 11, 2011
Urban Chickens in Albany
We've posted a few times about the curious topic of urban chickens. The issue really crosses a lot of lines between the public-health origins of zoning; class; sustainability; and modern trends like local food.
Local chickens are being debated in my hometown of Albany. Here is the story from the Times Union: Chickens Join City's Urban Sprawl. Apparently it's up to the Mayor now. The reporter also has a blog post asking for feedback here.
Thanks to Helen Festa for the link. Interestingly, Albany Law's Patricia Salkin mentioned this controversy last week when she was telling me that out of all of her (many!) recent pieces, it is her article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, that has gotten the most SSRN downloads. There must be a lot of passion out there about urban chickens!
May 10, 2011
More on Practically Grounded
Just a quick follow up to Matt's post about the Practically Grounded conference last week. This was the first time I've been to (or presented at) a conference of this type. It was so interesting to hear how land use and environmental professors are really engaging their students in experiential and interdisciplinary learning in their doctrinal, clinical, and skills classes. I learned so much!
It was also a historic moment in that there were three land use clinicians in the same room. Michelle Bryan Mudd from University of Montana and Kat Garvey from Vermont joined us. There aren't many Land Use Clinics in the country, so I really enjoyed the opportunity to talk with them and get their perspective on running this type of clinic. Who knows, this might even lead to some inter-state collaboration down the road?
Pace University Law School plans a follow up journal edition to this conference, so that folks who weren't able to attend will be able to read the preceedings. Hopefully this is also the first of many conferences of its type to come.
Jamie Baker Roskie
April 12, 2011
NYU Furman Center's State of NYC Housing & Neighborhoods
Vicki Been and the NYU Furman Center for Real Estate & Urban Policy have announced the release of their 2010 State of New York City's Housing and Neighborhoods report. Here's the email announcement, posted with permission:
Dear Friends and Colleagues,
We are pleased to present the 2010 edition of the State of New York City’s Housing and Neighborhoods annual report. As you well know, this report is a critical resource for data on housing, demographics, and quality of life indicators for each borough and for the city’s 59 community districts.
This year, we examine multi-family rental properties, a critical source of housing for more than four in ten New Yorkers. We find that multi-family rental properties received more foreclosure notices in the last two years than any period since the early 1990s. The study finds that smaller multi-family rental buildings (5-19 units) are most likely to receive a foreclosure notice among the multi-family properties, while the largest properties (100 or more units) have experienced the sharpest uptick in foreclosures in the recent years. The report also finds evidence that renters experience deteriorating living conditions when multi-family rental properties fall into financial distress and foreclosure.
This year’s report also includes new chapters: Getting to Work in New York City, which presents an analysis of commuting patterns in New York City, and Public and Subsidized Rental Housing in New York City, which finds that nearly one in five residential units (18.4%) in the city is publicly supported.
A look at the trends in this year’s State of New York City’s Housing and Neighborhoods reveals that the state of New York City’s housing market remains uncertain. After dramatic declines in housing prices in 2008 and 2009, the prices of condominiums and multi-family buildings began to bounce back in 2010, but the prices of single-family and 2-4 family homes continued to decline. In Manhattan, where the market avoided the sharp declines of the outer boroughs, housing prices are down only 9.9 percent from their peak, compared to 27.8 percent citywide.
Mortgage lending remained low in 2009, but the number of refinancing loan originations jumped as homeowners took advantage of historically low interest rates. While the housing crisis has been felt across the city, it has had a disparate impact on different racial and ethnic groups. Homeownership grew more quickly among white and Asian families in the last decade than Hispanic or black households, and declines in home purchase during the recession were most dramatic among black and Hispanic borrowers.
Despite the recession, most of the city’s social and economic indicators have improved in the last decade. Median inflation-adjusted incomes increased about five percent between 2000 and 2009. Poverty declined citywide, falling from 21.2 percent in 2000 to 18.7 percent in 2009. The population has continued to grow, led by the Asian population, which increased by 32 percent between 2000 and 2010. Health and quality of life factors have improved since 2000, and the city has experienced overall reductions in asthma hospitalizations, infant mortality and crime.
As always, we eagerly await your comments and feedback. If you would like to receive a hard copy, please email email@example.com.
Vicki Been, Ingrid Gould Ellen, Sarah Gerecke
Fascinating information; you can download the full report at the link.
April 12, 2011 in Affordable Housing, Housing, Local Government, Mortgage Crisis, Mortgages, New York, Planning, Property, Race, Real Estate Transactions, Scholarship, Urbanism | Permalink | Comments (1) | TrackBack
April 06, 2011
Columbia Conference on Sea Level Rise
From Michael Gerrard at Columbia Law:
Center for Climate Change Law, Columbia Law School and The Republic of the Marshall Islands
invite you to attend an international academic conference:
THREATENED ISLAND NATIONS:
LEGAL IMPLICATIONS OF RISING SEAS AND A CHANGING CLIMATE
May 23 - 25, 2011
New York, New York
DAY ONE: THE STATUS QUO -- SHIFTING LEGAL OPTIONS IN A CHANGING WORLD
Scientific summary: How much time do we have?
Statehood and statelessness
Preserving marine rights: Fishing and minerals
DAY TWO: WHAT CAN BE DONE TO HELP, AND HOW TO DO IT
Resettlement and migration issues
Existing legal structures
A new international convention?
DAY THREE: DOMESTIC OPTIONS FOR SMALL ISLAND STATES
Engineering for the future
Law and policy choices
[Visit this link for] Further information, and registration to attend conference or to view live webcast.
Jamie Baker Roskie
March 17, 2011
Happy St. Patrick's Day 2011
[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]
Now it's time to try and make a land use-related post about St. Patrick's Day. First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland. If that isn't an awesome land use regulatory feat, then nothing is!
St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries. Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land. Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.
St. Patrick's Day has spread throughout the Irish diaspora worldwide. In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday. Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities. Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants). Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues. After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century. My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics. When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream.
In the last few decades, St. Patrick's Day has continued to influence American land use issues. Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion. [ancillary question: is being "green" a good thing, in this sense?] In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades. The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?).
St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too. So hoist a green beer and celebrate. [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]
March 17, 2011 in Chicago, Comparative Land Use, Constitutional Law, Downtown, First Amendment, History, Houston, Humorous, Local Government, New York, Politics, Supreme Court, Urbanism | Permalink | Comments (0) | TrackBack
March 01, 2011
Introducing Jonathan Rosenbloom
We've had some really terrific guest bloggers here lately at the Land Use Prof Blog, giving us great contributions and ideas in a number of different areas of land use law. We now have the privilege of introducing Jonathan Rosenbloom, who will be joining us for March.
Jonathan is an Assistant Professor at Drake University, where he teaches and researches in the fields of Sustainability, Environmental Law, State & Local Government, and Property. His current research looks at issues in local government law with regard to sustainability. Jonathan previously taught as a visitor at Stetson, and he has substantial experience at the Center for New York City Law as well as in private practice and clerking. Now that he's in Iowa, though, he might be our first Midwestern contributor.* You can check out his bio page or vita, but more importantly, stand by to check out his contributions to the Land Use Prof Blog!
* With the possible exception of Tony Arnold. When I lived in Kentucky I occasionally heard something to the effect that "Lexington is Southern; Louisville is Midwestern."
February 27, 2011
Jones on Garner v. Gerrish and the Concept of "Home"
Bernie D. Jones (Suffolk) has posted Garner v. Gerrish and the Renter’s Life Estate: Teaching a New Concept of 'Home,' Faulkner University Law Review, Vol. 2, pp. 1-44, 2010. The abstract:
Property law scholars have been interested in Garner v. Gerrish, 63 N.Y.2d 575 (1984) because it presents a unique opportunity for discussing the boundaries of leasehold doctrine. As such, it is covered in various first-year property law textbooks. Its unusual fact pattern makes it useful as a means of helping students understand the differences among leaseholds for a term of years, the periodic tenancy, and the tenancy at will.
A landlord drafted a lease on a pre-printed form, writing in the terms of the lease, but without the advice of counsel. The lease had no end date and the tenant paid rent on a monthly basis. The landlord died within a few years of drafting the lease. In a dispute to determine the rights of the parties, the New York Court of Appeals held that since the tenant alone had the right to terminate, the landlord gave the tenant a determinable life estate. The tenant thus had a home for life, for which he need only pay the prescribed rent for as long as he chose to live on the premises. Though the case provided the basis for the Court of Appeals to modernize the tenancy at will in New York, I argue that it did not present the best fact pattern for doing so. Although the lease effectuated New York state rent control laws where they were not required by statute, it also indicates the possibilities to be found in disguised leasehold arrangements redefining the boundaries of “home.”
This article discusses the treatment of Garner v. Gerrish in typical first-year property textbooks. It explains and assesses the opinion from the trial court to the appellate decisions – the theories of the case developed by the parties, and the courts’ interpretations of landlord-tenant law. The article offers analyses of the archived records in the case that indicate the failures of the landlord’s executor to articulate the defenses of unconscionability and undue influence. It is unclear why the executor pursued this strategy.
Cases like these, where there are more questions than answers, present ideal opportunities for property law faculty to develop multifaceted pedagogical strategies. These might encourage students to think not only about doctrine but litigation strategies in the real estate context, and the perils to be found in flawed strategies that might result in decisions that go against them. In Garner v. Gerish, this meant a limited understanding of the case that coincided with prevailing pro-tenant sentiments in New York landlord tenant law.
I always enjoy teaching Garner v. Gerrish during the property course, and this article expands our understanding of the case from being a good example of certain issues with landlord-tenant law toward a larger commentary on the meaning of the home. The article also looks like it will be another good addition to the increasing literature on the backstories of leading cases (exemplified by the Foundation Press Law Stories series and other articles). Should there be a "Land Use Stories" volume?
Teaching Outside the Box
We're now entering week 4 of the spring semester at Buffalo. I'm very excited about my classes this e. Both of which are firsts for me.
I am teaching Natural Resources Law. This is a fun course and I have a great group of students. I was a bit taken aback when I learned how many of my students are from Buffalo. Place matters for many reasons, but it is especially strange feeling to teach a public lands class without one person in the room from west of the Mississippi.
I am also teaching a distributed graduate seminar called Land Conservation in a Changing Climate. "A distributed what?" you say? Yep, a distributed graduate seminar. I believe it is the first seminar of its type in the legal academy. A group of eight professors at six different schools (Buffalo, Denver, Indiana,South Carolina, Stanford, Wisconsin) are all teaching a course with roughly the same title at the same time. We have similar but not identical syllabi and take slightly different approaches to our classes. Although law students probably dominate the classes, we have opened up our classes to graduate students in other departments. All students are examining case studies, collecting data, and inputting results of interviews and research into a joint system. At the end of the semester, both the faculty and students will have access to the collected data. I am excited about this project for many reasons. First, our students are learning how to work with social scientists and understand scientific reports and papers. Second, students are actually collecting data and interviewing people who are conserving land. Third, the data collection will enable us to think both about our own states and do comparative work. Studying conservation easements is often challenged by the lack of available data. We are specifically examining how conservation easements will react (or not) to climate change. I think this project will be good for the students of course, but I also hope they learn things that will help others.
- Jessica Owley
February 17, 2011
New Atlantic Yards Movie
Perhaps I am late to the game on this one, but I just saw the trailer for a documentary about the Atlantic Yards controversy. The movie, called Battle of Brooklyn, tells the story of Brooklyn's use of eminent domain to build a sports arena. I am a big fan of eminent domain (hmm.. not sure if that is the right way to put it), but will likely see this movie that appears to focus on the protesters.
The main protester that the film follows actually agreed to a $3 million settlement and moved out. I wonder if they include that tidbit.
- Jessica Owley
February 17, 2011 in Affordable Housing, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Environmental Justice, New York, Property Rights | Permalink | Comments (5) | TrackBack
February 13, 2011
Are the most productive environmental law scholars writing about land use?
Bridget Crawford and Emily Waldman at Pace have been doing some interesting research (especially considering the fact that neither one is an environmental law or land use professor). They have put together a list of the most productive environmental law scholars at the top ten environmental law schools. It is admittedly a narrow list, and I am not sure what it can tell us. Perhaps it gives guidance to those of us hoping to get our environmental law programs into the top ten. If so, the message appears to be (1) write more or (2) hire Dan Farber.
What I found interesting about this list in reference to our earlier discussions (here and here) of land use versus environmental law, is that these non environmental law scholars did not appear to make such a distinction. Specifically notable, is the prolific John Nolon ranks number 2 on the list. He is undoubtedly a land use prof and yet recognized in this study as an environmental law scholar. See we should all just be one big happy family.
- Jessica Owley
February 12, 2011
Eagle on Urban Revitalization, Eminent Domain, and Jane Jacobs
Steven J. Eagle (George Mason) has posted Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, forthcoming in the Albany Government Law Review. The abstract:
This article reviews the implications for land use policy of Jane Jacobs’ The Death and Life of Great American Cities. Fifty years after its publication in 1961, Death and Life remains a clarion call for resistance to monolithic development and to the reigning paradigm of urban planning in the mid-20th century. The article asserts, however, that government officials and planners have learned the wrong lesson from Jacobs. Their emphasis on the top-down imposition of what purports to be varied development is evident in the growth of condemnation for retransfer for private economic redevelopment. Such policies are directly contrary to Jacobs’ insistence on bottom-up organic development.
The article further describes the muddled state of the U.S. Constitution’s Public Use Clause, evident in Kelo v. City of New London and in state cases such as Goldstein v. New York State Urban Development Corporation. It asserts that judicial unwillingness to provide meaningful scrutiny to condemnation for private redevelopment is based, in part, on acceptance of the revisionist, and incorrect, reading of Jacobs’ work.
February 11, 2011
Fort on Laches and Indian Land Claims
Kate Fort (Michigan State) has posted Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, 11 Wyo. L. Rev. ____ (forthcoming 2011). Here's the abstract:
That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.
The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.