Monday, July 30, 2012

The Politics of Chick Fil-A Bans

Matt has the legality of the various proposed Chick Fil-A bans covered.  As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional.  While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner. 

To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility).  In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise.  As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on.  They rarely make the mistake of saying "we just don't want poor people living here."  Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake.  So why, to repeat my question, are city officials doing this?  There are two possible answers, as I see it:

1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices.  This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.

This is the less likely of two alternatives, however.

2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A.  The real reason for their strident statements: signalling that they are gay-friendly communities.  Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues.  Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas.  Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly.  In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law. 

One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A?  Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt.  In addition, cities aren't just competing for gays but for business.  Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses.  This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business. 

Ken Stahl

July 30, 2012 in Chicago, Constitutional Law, First Amendment, Food, Local Government, New York, Politics, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Saturday, July 28, 2012

Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use

Even the culture wars often end up in a land use controversy.  Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO.  According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis.  From First Amendment Trumps Critics of Chick-fil-A:

Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."

I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission.  Cleveland State law prof Alan Weinstein put it best:

Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.

That last observation is key.  Most of the commentary on this issue has revolved around the CEO's First Amendment rights.  And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions.  But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers. 

From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent.  It appears that this constitutional reality is setting in, and the public officials are backtracking.  Here's a video interview with the WSJ reporter:

 

I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.   

So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.

Matt Festa

July 28, 2012 in Constitutional Law, First Amendment, Food, Local Government, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2012

The London Olympics & Land Use--The Atlantic Cities' Coverage

As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games.  For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games.  Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues.  Here are just a few examples of the wide range of topics they've addressed:

Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world. 

The British media, of course, have lots of excellent coverage.  But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page.  They're posting several new stories each day. 

In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!

Matt Festa

July 26, 2012 in Affordable Housing, Architecture, Comparative Land Use, History, Housing, Local Government, Planning, Politics, Redevelopment, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum

Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer. 

I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research.  Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism

Congrats to both, and way to represent those of us in the property and land use junior ranks!

Matt Festa

July 24, 2012 in Conferences, Federal Government, Local Government, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2012

Clowney on Landscape Fairness and Discrimination in the Built Environment

Stephen Clowney (Kentucky), our colleague over at Property Prof, has posted his latest piece, called Landscape Fairness: Removing Discrimination from the Built Environment, forthcoming in the Utah Law Review (2012).  It looks very interesting.  The abstract:

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.

The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.

This article touches on one of the most important but least discussed aspects of land use and the community landscape, and it builds on some of Steve's earlier work.  Check it out.

Matt Festa

July 17, 2012 in Community Design, History, Local Government, Planning, Politics, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 11, 2012

Land Use Travels: Kyrgyzstan

Greetings from the Kyrgyz Republic, also known as Kyrgyzstan! 800px-Flag_of_Kyrgyzstan.svg

Kyrgyzstan is a Central Asian republic halfway around the globe.  It's a fascinating place, and my third trip here in the past 12 months.  I'm not here doing land use; actually I'm on a federal government mission relating to international law.  But you know me: I'm always on the lookout for interesting land use issues.  So I'm planning to keep my eyes open and hopefully share some thoughts and observations about land use in Kyrgyzstan.  I'll start today with an intro to the country and some preliminary thoughts.

Kg_large_locatorKyrgyzstan is a small Central Asian republic tucked in between China, Tajikistan, Uzbekistan, and Kazakhstan (map thanks to Nations Online Project).  It has a long history at the crossroads of empire.  From its position on the ancient Silk Road to the 19th Century "Great Game" to the Soviet Union to today, this little-known country has long had a strategic importance globally.

Kyrgyzstan has been independent since the USSR dissolved in 1991.  It has a population of about 5.5 million.  The majority is ethnic Kyrgyz, with a substantial Uzbek minority, as well as Russian and other groups.  The population is majority Muslim but the government is secular.  It has a capital city, Bishkek--where I've spent most of my time here--and a few other smaller cities, notably Osh in the southern region.  Its geography is 90% mountainous, located in the Tien Shan Mountains and the Fergana Valley.  This makes it a stunningly beautiful place, but it is poor in natural resources and its economy relies heavily on the agricultural areas.  It is a poor country but has maintained a relatively democratic society, at least compared to other countries in the region; however it has had two revolutions and ethnic riots in the past several years.  For more information on Kyrgyzstan see the State Department's Background Notes and the CIA World Factbook.  

There are many potential land use issues in Kyrgyzstan.  It has a long geostrategic history based on its location, terrain, and people.  It has a capital city that was completely planned and built from scratch by the Soviets.  It has a post-Soviet economy that is reflected in the maintenance of the city.  It has some serious local governance issues.  There is an urban-rural divide that impacts national politics.  And there are of course land issues of environment, natural resources, and climate. 

If you aren't familiar with this part of the world, the name may sound like a fictional place, but Kyrgyzstan is quite real and very interesting.  If I have more land-use related observations from Bishkek, I'll try to share them here.  In the meantime, Саламатсызбы!

Matt Festa

July 11, 2012 in Comparative Land Use, History, Planning, Politics | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 3, 2012

Dwyer on Urban Blight and its Impact on Children

James G. Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning, Alabama Law Review, vol. 62 (2011).  The abstract:

For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.

To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.

Matt Festa

July 3, 2012 in Affordable Housing, Crime, Density, Economic Development, Housing, Politics, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

Fracking, Academic Freedom, and University Research

"Speaking of frac'ing fraking fracking, the University at Buffalo recently created a new Institute to study the issue. The Shale Resources and Society Institute (SRSI) was created back in April and has already been quite busy. It recently issued its first report on the Environmental Impacts of fracking Shale Gas Drilling.

My first reaction to this report was "Wow, I can't believe they put this together in just one month." Others actually spent more time carefully reading the document, however. Generally, the reaction has been a negative one.I think there are many reasons to criticize the fracking report and to question its findings and others have done so admirably. Environmentalists are concerned about the legitimacy of the study, which concluded that "state oversight of oil and gas regulation has been effective" and that there is "a low risk of an environmental event occuring in shale development, and the risks continue to dimish year after year."

There was some small kerfuffles regarding peer review (peers offered feedback but did not do a formal peer review) and folks disputed the data and the conclusions. I have been quite intrigued by the discussions that have popped up about the funding of the study. While people quickly jumped to the conclusion that the study was funded by oil and gas companies, that turned out not to be true. However, many criticize the publishing of what is a "pro-fracking' report from a public institution. Particularly rankling appears to be the report authors' ties to industry and a earlier report some of them had written for a conservative think tank. This is an issue we rarely face in legal academia as so few of us receive extensive outside funding (and I personally don't know anyone who has received industry funding), but I wonder how much we should have to disclose when publishing articles. Should we include a footnote explaining who our former clients are? what organizations we support? Do these requirements change if we work for public institutions?

Jessie Owley

 

June 12, 2012 in Oil & Gas, Politics, Scholarship, State Government | Permalink | Comments (1) | TrackBack (0)

Sunday, June 3, 2012

Lefcoe on California Redevelopment Decision

George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start.  The abstract:

This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.

Matt Festa

June 3, 2012 in California, Caselaw, Constitutional Law, Local Government, Politics, Redevelopment, Scholarship, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Memorial Day

Memorial Day Houston National CemeteryToday was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, May 20, 2012

Dod & Duhart on Evaluating Katrina

Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467.  The abstract:

Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.

This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.

Matt Festa

May 20, 2012 in Coastal Regulation, Federal Government, History, Housing, Landlord-Tenant, Politics, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 18, 2012

Sun on Smart Growth in Dumb Places

Lisa Grow Sun posted this paper last year.  It should be of great interest to land users: Smart Growth in Dumb Places: Sustainability, Disaster, and the Future of the American City.  The abstract:

One of the many lessons of the recent earthquake and tsunami in Japan is that we cannot mitigate disaster risk through building codes and other structural solutions alone. Location is key to a community’s natural hazard vulnerability. Consequently, the most far-reaching and important question for disaster mitigation today is where we will channel the growth that will be needed to accommodate our expanding population. Yet, both environmental scholars and policymakers are promoting sustainability initiatives that will channel our country’s future growth into existing urban areas that are already extremely vulnerable to disaster. Indeed, many of these policies - and the legal tools used to implement them - are channeling growth, not only into particularly vulnerable cities, but into the riskiest areas of those cities. This Article is the first to identify and explore this critical tension between disaster mitigation and current sustainability policies.

The impact of current and future disasters on land use is a very important policy issue.  Sun offers a different take on the conventional wisdom--which I have indulged in too--that more urbanism is always better.  Sun suggests that we should be more discerning with our prescriptions.

Matt Festa

May 18, 2012 in Environmental Law, History, Planning, Politics, Scholarship, Smart Growth, Smartcode, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 16, 2012

What Would Jane Jacobs Do?

Regular readers know that we love the National Building Museum.  And any land use professional knows that we all love to talk about Jane Jacobs.  So here's an event that might be of great interest: Urban Forum: What Would Jane Jacobs Do?

Fifty one years after Jane Jacobs published her seminal book The Death and Life of Great American Cities, her ideas on liveable, walkable, and diverse neighborhoods continue to impact how urban environments are designed. A panel discusses Jane Jacobs’ legacy, including urban renewal, historic preservation, mixed-use zoning, and public space. Light refreshments will be served.

Panelists include:

  • Bing Thom, Bing Thom Architects 
  • Harriet Tregoning, director, Washington D.C. Office of Planning 
  • Susan Szenasy, editor-in-chief, Metropolis Magazine (moderator) 
  • John Zuccotti, co-chairman of the board, Brookfield Properties Corporation and former Chairman of the New York City Planning Commission

Free (but required) registration is available for the event on Sunday, May 20, 2012 at 10:00-11:30.  Check it out!  If you are able to go to WWJJD, I'd love to hear about it.

Matt Festa

May 16, 2012 in Architecture, Density, Downtown, Historic Preservation, History, Houston, Lectures, New Urbanism, Planning, Politics, Property, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, May 14, 2012

Owley on Neoliberal Land Conservation and Social Justice

Jessica Owley (Buffalo) has posted Neoliberal Land Conservation and Social Justice, Interational Union for Conservation of Nature Academy of Environmental Law e-Journal, 2012.  The abstract:

Private land conservation programs in North America tend to convey the greatest benefits to those who are already relatively well off in terms of land, wealth, and quality of life. For example, conservation easements — the fastest growing method of land protection in the United States — reward landowners with cash payments and tax breaks. At the same time, these programs tend to focus protected land in areas with low population densities. These benign sounding programs can hamper social services by reducing tax revenues and preventing the development of socially desirable amenities like affordable housing. This article describes the emergence of conservation easements as a land protection mechanism, situating it within the worldwide trend of neoliberal conservation and emergence of new environmental governance systems dominated by private actors. Specifically, this article examines the social justice concerns of conservation easements including questionable use of public funding, inequitable distribution of environmental amenities, and concerns about democracy and accountability. Rethinking conservation easement placement, use, and enforcement along with reducing or removing the tax breaks associated with them would alleviate, but not erase, some of the environmental justice concerns.

I have good reason to think that we might be hearing more from Prof. Owley soon.  Stay tuned!

Matt Festa

May 14, 2012 in Affordable Housing, Conservation Easements, Environmental Justice, Environmental Law, Local Government, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Strategic “Blight” Designation in Missouri

As most land use professors are well aware, having land declared “blighted” isn’t always such a bad thing.    

The potential disadvantages of official “blight” designation are obvious.  Properties in declared “blighted” areas can be particularly susceptible to takings by eminent domain, as famously highlighted in Berman v. Parker, 348 U.S. 26 (1954).  Official designations of blight can also depress property values in some situations due to a perceived stigma commonly associated with blighted land.  

Why, then, would anyone want their real property to be declared “blighted”?  The reason, of course, is that officially blighted property can qualify for special tax benefits or programs in many jurisdictions.  If parcels are eligible for huge tax breaks only if they are officially labeled as “blighted,” then getting that label can suddenly be more a blessing than a curse.

An ongoing political debate in Columbia, Missouri, showcases this ironic aspect of redevelopment policy.  Missouri statutory law provides that new real property improvements in “enhanced enterprise zones” (EEZs) can qualify for generous property tax reductions.   Companies that invest in redevelopment within an EEZ can also receive state income tax breaks.  A group of government officials in Columbia have thus been seeking to have nearly half of the city designated an EEZ.  Unfortunately, EEZ designation requires that the entire EEZ area be declared blighted.  In Columbia, the proposed blighted area would encompass vast portions of the city where retail outlets are succeeding and businesses appear to be thriving. 

Sadly, those in favor of the EEZ proposal in Columbia argue that declaring half of the city to be blighted is necessary to enable it to compete statewide for new manufacturing and other jobs.  At least 118 Missouri communities--comprising one third of the land area of the state--have already declared themselves blighted to take advantage of the EEZ statute, giving them a leg up in attracting private redevelopment dollars. 

Should state redevelopment policies be structured such that local officials must declare large amounts of their communities to be blighted to have any chance of competing for private investment? 

Those interested in exploring this topic from an academic perspective will find plenty of published scholarship on LexisNexis or Westlaw to distract them from grading final exams for at least a few hours.  For a convenient launching point, consider Colin Gordon, Blighting the Way:  Urban Renewal, Economic Development, and the Elusive Definition of Blight, 31 Fordham Urb. L. J. 305 (2004).

Troy Rule

May 14, 2012 in Community Economic Development, Development, Economic Development, Eminent Domain, Local Government, Politics, Redevelopment, State Government | Permalink | Comments (0) | TrackBack (0)

Monday, May 7, 2012

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

May 7, 2012 in Environmental Law, Federal Government, History, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 12, 2012

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

April 12, 2012 in History, Politics, Property Rights, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, April 9, 2012

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 2012 Image_200

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

April 9, 2012 in History, Local Government, Planning, Politics, Urbanism | Permalink | Comments (2) | TrackBack (0)

Saturday, March 24, 2012

Miller on Building Legal Neighborhoods

During his great guest-blogging stint here in January, it appears that Stephen Miller (Idaho) was also busy finishing his article Building Legal Neighborhoods, which has been accepted for publication by the Harvard Environmental Law Review.  The abstract:

Political and legal tools have emerged since the Seventies, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion and there has been scant analysis of how these tools might work together effectively. This article seeks to explore this trend, and further argues that cities consciously overlay these neighborhood legal tools. This approach is referred to in the article as a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving and in which residents feel comfortable participating. The article also provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.

Looks like a very timely and interesting piece.

Matt Festa

March 24, 2012 in Environmental Law, Local Government, Planning, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 2, 2012

Long on Overcoming Neoliberal Hegemony in Community Development

Jerrold A. Long (Idaho) has posted Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism.  The abstract:

Law constrains our behavior, both individually and collectively. Legitimate law is that law that emerges from an inclusive process that identifies a governed community’s collectively imagined future for a place, while respecting the concerns of necessarily oppressed minority interests. In the land use context, we use comprehensive land-use plans to identify and communicate a vision that motivates binding behavioral changes — i.e., plans create visions that are sufficiently attractive to motivate communities to act in meaningful ways. To the extent law emerges from an inclusive and effective community plan, it is legitimated by that plan. But a planning process that relies exclusively on letting visions emerge from a community necessarily prefers those visions that provide individual economic benefits to specific participants — e.g., the growth machine. Public goods — even public goods that might represent the “best” vision for a particular community — are not championed, supported, or developed in the planning process. Combined with a general trend toward neoliberal governance, and the weak legal position of comprehensive plans, this inherent preference for the growth machine over the public good yields land-use ordinances that are unrelated to what might be the best vision for a community. The remedy is twofold. If planning’s purpose is to achieve public goods, planners must be willing to represent the unrepresented, potentially forcing particular visions on communities during the planning process rather than waiting for private-good-driven visions to emerge, at least initially. And the forced visions must be sufficiently specific so as to limit the universe of legal choices, and land-use consequences, that result. If the forced vision is useful — if it is a public good — the community will adopt it. Without the forced vision, it does not have that opportunity.

As coincidences go, I just had the pleasure of meeting Jerrold for the first time tonight at the ALPS reception, and then came back to jump on the interwebs and see that he has one of the most recently-posted land use papers on SSRN.  So check it out.

Matt Festa

March 2, 2012 in Comprehensive Plans, Planning, Politics, Scholarship | Permalink | Comments (1) | TrackBack (0)