Wednesday, June 19, 2013
Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013). Lee presents an interesting challenge to recent scholarship recognizing "confiscation of the uncompensated increment" to use Lee Fennell's terminology. The article does not reject above-market compensation altogether but instead criticizes premium approaches for redistributing wealth to the already well-off. Here's the abstract:
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.
Tuesday, June 18, 2013
Rachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319 (2013). It's wonderful to have Rachel's civil rights scholarship back in the (urban) neighborhood again. Here's the abstract:
Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.
This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.
Saturday, June 15, 2013
Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013). (Who says Zoning can't go Ivy?!?) Matt notified us when the piece first was uploaded. Here's the abstract for the finished piece:
In any given metropolitan region,
scores of municipalities are locked in a zero-sum struggle for mobile sources
of jobs and tax revenue. This competition appears to benefit small, homogeneous
suburbs that can directly enact the uniform will of the electorate over large,
diverse cities that are often ensnarled in conflict between competing interest
groups. Cities can level the playing field with suburbs, however, by devolving
municipal power to smaller, more homogeneous subgroups, such as neighborhoods.
Indeed, many commentators have identified one such effort at neighborhood
empowerment, the “business improvement district” (BID), as a key factor in the
recent revitalization of many cities. The BID and the related “special
assessment district” devolve the financing of infrastructure and services to
landowners within a territorially designated area. Courts have widely upheld
BIDs and special assessment districts against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.
Tuesday, June 11, 2013
Carol Zeiner (St. Thomas) has posted A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold, forthcoming in the Utah Law Review (2013). The abstract:
Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.
I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation.
That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people.
Any such conclusion demands reexamination on theoretical grounds, which is done in this Article. In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion.
Michael C. Blumm (Lewis & Clark) and Andrew B. Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been. The abstract:
The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for wilderness suitability and not released to multiple use or are wilderness study areas managed by BLM. In the last two decades, considerable controversy has surrounded roadless areas in both national forests and BLM lands because protecting their wild land characteristics may foreclose development, such as oil and gas leasing or timber harvesting. Recently, the courts have settled longstanding litigation by upholding roadless rule protection in the national forests. But BLM wild land protection has remained more unsettled, as Congress recently rejected a Wild Lands Policy adopted by the Obama Administration. Despite this political setback, current policy is to survey and consider wild lands in all BLM land plans and project approvals. This promised consideration, however, leaves the fate of such lands in the hands of local BLM officials and to the political vicissitudes of future administrations.
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.
It's time once again for the "Professors' Corner" teleconference sponsored by the ABA's Real Property, Trusts, & Estates section. This month's call features different recent cases to be discussed by John Orth (North Carolina), Tanya Marsh (Wake Forest), and yours truly (South Texas). See the writeup below for details on the call-in and the cases. Also, if you're a property or land use prof who might be interested in participating in future calls (I recommend it), get in touch with Tanya.
Professors’ Corner: Wednesday, June 12, 2013
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, June 12, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners. Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.
John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series. Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death. Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety. Here’s a link to Reicherter: http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf
And to Callaghan: http://www.flprobatelitigation.com/uploads/file/4D11-631_op.pdf
Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section. She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions. Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf
Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog. Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline. Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf
Monday, June 10, 2013
Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013). The abstract:
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
This looks really interesting. Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country. These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing.
June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)
This Essay, based on a presentation at Duke Law School’s 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ecosystem services and why it is worth considering using the ecosystem services concept in public land policy. Part II proposes several key research paths that must be addressed before federal lands can be effectively managed for ecosystem service flows. Part III bears down on the different roles federal lands might play in promoting or participating in markets for ecosystem services.
Monday, May 27, 2013
The U.S. tradition of Memorial Day has a long and complex relationship with land, history, and memory. This post has some thoughts on the subject from last year.
Today 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 blogposts 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.
Check out the whole post for some info about a couple of little-known and interesting events from the early history of Memorial Day and land use, including what may be the first Memorial Day celebration, by African-Americans in Charleston on the former planters' racecourse, and a U.S. Supreme Court case about eminent domain for historic preservation on Gettysburg National Battlefied.
We hope you had a safe and happy Memorial Day.
Saturday, May 18, 2013
Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review. The abstract:
Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.
First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.
Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.
Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.
After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution.
Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review. The abstract:
In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.
May 18, 2013 in Caselaw, Constitutional Law, Eminent Domain, Judicial Review, Politics, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 7, 2013
As many of you know, the ABA hosts a free "Professors' Corner" teleconference each month, where we have the chance to discuss recent cases and hot topics with scholars and practitioners. Courtesy of Julie Forrester, here is the info on this month's discussion, which focuses on commercial leasing:
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Real Estate Transactions Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, May 8, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This month’s program, moderated by Professor Jim Durham of the University of Dayton School of Law, features a roundtable on Commercial Leasing. Our two featured speakers will be Professors Celeste Hammond and Professor Daniel B. Bogart, who are co-authors of Commercial Leasing: A Transactional Primer, now in its Second Edition and published by Carolina Academic Press.
Professor Hammond is a Professor of Law and the Director of the Center for Real Estate Law at the John Marshall Law School in Chicago. Professor Hammond will be discussing “Green” issues in commercial leasing and the implications of this “greening” for landlords, tenants, and their attorneys. Here is a copy (for your download and preview) of a Powerpoint presentation that will accompany Professor Hammond’s comments: http://law.missouri.edu/freyermuth/hammondgreenleasing.pptx
Professor Bogart is the Daniel and Marjorie Bollinger Chair in Real Estate Law at Chapman University School of Law, where he serves as both the Associate Dean for Academic Affairs and as the Director of the Center for Land Resources. Professor Bogart will be discussing some recent leasing decisions of note, including (click on the link for a copy of each decision):
J-Star Holdings, LLC v. The Pantry (Tenn. Ct. App. January 2013) (whether a commercial lease agreement requires the tenant to pay excise taxes imposed on the landlord): http://www.tncourts.gov/sites/default/files/j-star_opn.pdf
Maida Vale, Inc. v. Abbey Road Plaza Corp., 96 So.3d 1027 (Fla. Ct. App. 2012) (whether a tenant who withheld payment of disputed CAM charges may be evicted for nonpayment of rent): http://www.4dca.org/opinions/August%202012/08-22-12/4D10-2203.op.pdf
Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, 2013 WL 440726 (10th Cir. 2013) (whether a tenant that surrendered the premises without repairing significant property damage as required by the lease can be deemed to have held over while landlord effects repairs so as to permit landlord to collect rent during that period): http://scholar.google.com/scholar_case?case=16297268405506062242&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Wednesday, May 1, 2013
I stumbled across a recent artcle in Applied Geography that I think may be of interest to our readers. I got even more excited when I realized the piece was from colleagues in SUNY Buffalo's Geography Department. Amy Frazier, Sharmistha Bagchi-Sen, and Jason Knight examine the effect of demolition on land-use patterns and changes in human-environment interactions.
While many cities are worried about smart growth and we land use profs spend a lot of time thinking about it, shrinking cities like Buffalo face another challenge: smart decline. The authors (and others) have convinced me that maintaining pro-growth policies in a shrinking city is ill-advised. Instead of thinking we're going to suddenly grow Buffalo, let's think about how we can grow smaller gracefully. Smart decline policies include things like land banks, urban farming, and green infrastructures.
Frazier et al. look at the smart decline policy of demolition. Earlier studies (as well as conventional wisdom) suggest that vacant buildings attract criminal activities (the broken window effect). This study examined a five-year demolition program in Buffalo to assess whether demolitions of vacant buildings actually lead to reduced crime. Their results are fascinating and like all of the best projects point out areas where more research is needed. The big take aways seem to be that there may be some local reductions in crime, but that likely means that the criminal activity is pushed elsewhere. This can have unanticipated impacts on surrounding areas, transportation needs, housing values etc. Such policies need to examine the way that demolitions will shift land uses and impact human-environment interactions. To do so in a successful way will necessarily include regional approaches.
Amy E. Frazier, Sharmistha Bagchi-Sen, & Jason Knight, The Spatio-temporal Impacts of Demolition Land Use Policy and Crime in a Shrinking City 41 Applied Geography 55 (2013)
ABSTRACT: Land use change, in the form of urbanization, is one of the most significant forms of global change, and most cities are experiencing a rapid increase in population and infrastructure growth. However, a subset of cities is experiencing a decline in population, which often manifests in the abandonment of residential structures. These vacant and abandoned structures pose a land use challenge to urban planners, and a key question has been how to manage these properties. Often times land use management of these structures takes the form of demolition, but the elimination of infrastructures and can have unknown and sometimes unintended effects on the human-environment interactions in urban areas. This paper examines the association between demolitions and crime, a human-environment interaction that is fostered by vacant and abandoned properties, through a comparative statistical analysis. A cluster analysis is performed to identify high and low hot spots of demolition and crime activity, specifically assault, drug arrests, and prostitution, over a 5-year period. Results show that there is an association between the area targeted for significant demolition activity and the migration of spatial patterns of certain crimes. The direction of crime movement toward the edges of the city limits and in the direction of the first ring suburbs highlights the importance of regional planning when implementing land use policies for smart decline in shrinking cities.
May 1, 2013 in Community Design, Crime, Density, Downtown, Environmental Justice, Housing, Local Government, New Urbanism, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (1) | TrackBack (0)
Monday, April 29, 2013
The Journal of Landscape and Urban Planning has announced a call for papers for a special issue. Abstracts are due May 10th with papers to follow at a later date.
Description is below with details on their website.The ‘green city’ with high-quality and generous vegetation is an ideal with universal appeal that transcends temporal, spatial and cultural divides. Vegetated sites, including street trees, green alleys, greenways, green roofs, urban parks and informal green spaces enhance the liveability of cities by improving landscape and environmental quality, quality of life, and citizen health. Green infrastructural development has been driven by changes in local demand and urban form over time.
Global climate change poses new challenges to the planning and management of urban green infrastructure. Scientists anticipate warmer average temperatures and intensified storms and extreme weather conditions in the decades ahead. The urban heat island effect will increase the intensity and frequency of global warming impacts. Coupled with increasingly variable precipitation and gradual sea level rises, climate change is expected to bring significant impacts to urban populations, particularly medium-high density coastal cities.
Green infrastructure constitutes a local response to the most pressing global challenge in our times. Urban greenery can potentially shield cities against adverse effects of climate change. By harnessing and blending natural processes with infrastructural development, green infrastructure can help moderate natural hazards, regulate water balance, and alleviate heat stress. Recent research has confirmed that green infrastructure should be systematically integrated into urban climate change adaptation responses. But our knowledge of green infrastructure has not been systematically assessed, and our conceptual frameworks for advancing green infrastructure as a climate change response are presently weak. Further consolidation of knowledge could achieve a higher degree of intellectual coherence, which will be conducive to building closer linkages to global discourses and practices, potentially reaching a wider institutional audience.
The aim of the Special Issue is to solicit and integrate new research findings in an effort to advance a coherent and conceptually rigorous framework of knowledge about green infrastructure. Papers are sought that critically examine the role of urban green infrastructure in response to climate change impacts. Papers must provide evidence of, and insights into, the prospects for using green infrastructure to enhance urban adaptability. The Special Issue pursues broad geographical representation, but priority is given to case studies of densely populated coastal cities. Empirical reports are encouraged, although high-quality perspective essays are also welcome. Contributions from multiple disciplines are invited. Papers are expected to address institutional concerns, apply scientific findings to formulate policy recommendations, and adopt an international perspective.
Friday, April 19, 2013
Stephanie Stern (Chicago-Kent) has posted The Dark Side of Town: The Social Capital Revolution in Residential Property. Here's the abstract:
Social capital has pervaded property law, with scholars and policymakers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital — its capacity to effectuate local factions and promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.
We are just starting day two of a conference here at Buffalo on climate change in the artic. We have participants from many fields (coming in person and electronically). This conference is also our first try at broadcasting our conferences via webinar. This enables folks to participate from all over the globe (not just by passively listening but also offering real-time questions and comments). It also seems a great way to do CLE.
I am including the information on the conference below in case any of you have some free time today and want to join the webinar. Also, the papers steming from the conference will be available in a SUNY Press book on the issue coming out next year.
The Big Thaw: Policy, Governance and Climate Change in the
Circumpolar North will bring together experts in science, law,
sociology, and other fields to explore the pressing issue of climate
change in the arctic. Conference participants will deliberate on
international, national, and local perceptions of environmental,
cultural, social and economic change in the arctic, interweaving the
contexts of policy, legal, local and scientific models. Through its core
focus on time, space, change and movement, this conference seeks common
measures to the time scales of lived human experience in the arctic and
sub-arctic region in a warming world.
The circumpolar North is a critical observatory for changing relations between human societies and the environment, and the policies that should accompany such change. The arctic and the sub-arctic are at the center of global debates on post- Cold War partnerships and issues of
post-colonial governance, strategy and regional sovereignty. For political and other reasons, the circumpolar North has only recently reemerged as a "region," revealing past connections and current common problems, and pointing to future challenges. Experts will gather and share thoughts on how we arrived at the current situation(s), where exactly things stand, and where to go from here.
Thursday, April 18, 2013
Carol Rose (Yale & Arizona) has posted Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants, which is available in the 2013 edition of Powell on Real Property. Here's the abstract:
This article was given as the 6th Annual Wolf Family Lecture on the American Law of Real Property, University of Florida Levin College of Law (2013). It draws on property law discussions in Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article outlines the ways in which constitutional law and property law engaged in a dialog about white-only racial covenants from their early twentieth-century origins to the middle of the twentieth century and beyond. After a shaky beginning, both constitutional law and property law became relatively permissive about racial covenants by the 1920s. But proponents of racial covenants had to work around property law doctrines — including seemingly arcane doctrines like the Rule Against Perpetuities, disfavor to restraints on alienation, "horizontal privity," and "touch and concern." Moreover, property law weaknesses gave leverage to civil rights opponents of covenants, long before Shelley v. Kraemer (1948), the major constitutional case that made these covenants unenforceable in courts. Even after Shelley's constitutional decision, property law continued to be a contested area for racial covenants, with echoes even today.
Wednesday, April 17, 2013
Lee Fennell (Chicago) has posted Crowdsourcing Land Use, 78 Brook. L. Rev. ___ (forthcoming 2013). In it she looks ahead to the possibilities for emerging information technology to provide platforms for sharing data about land use impacts and preferences as well as landowner intentions. The last of these involves a proposal for the creation of publicly facilitated options markets in land use rights, an idea she previously outlined in her 2011 piece Property and Precaution (Journal of Tort Law, 2011). Here's the abstract for the Crowdsourcing article:
Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.
Friday, April 12, 2013
I got my registration brochure this past week for the AALS Midyear Meeting to be held in San Diego in early June. Along with two criminal justice programs, it features a Worskhop on Poverty, Immigration and Property that brings together a fascinating mix of presentations from scholars frequently referenced on your favorite land use law blog. Unfortunately, I won't be able to attend; but, I look forward to seeing the papers.
One panel that drew my eye features work from David Reiss (Brooklyn), Marc Poirier (Seton Hall) and Twila Perry (Rutgers-Newark). We have previously blogged about related work by David and Marc. Prof. Perry has written extensively about transracial adoption, but I was not familiar with her work prior to receiving the mailing. She will be presenting in June on Gentrification: Race, Class Law and the Integrationist Ideal. I came across an earlier work she published comparing gentrification and transracial adoption entitled Transracial Adoption and Gentrification: An Essay on Race, Power, Family, and Community, 26 B.C. Third World L.J. 25 (2006). Here's the abstract:
In this article, Professor Perry finds common ground between the two seemingly disparate contexts of transracial adoption and gentrification. Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. In the former case, the limited resource is the healthy Black newborn. In the latter, it is desirable, affordable housing in the centers of our cities. After explaining how a competition between Blacks and whites over Black newborns could arise, Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. The article argues that there is a public discourse in both contexts that blames Blacks for the problems facing Black families and Black communities and valorizes whites who transracially adopt or move into inner-city neighborhoods undergoing gentrification. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification.
Thursday, April 11, 2013
Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.
My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.
I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.
- Jessie Owley