Thursday, April 28, 2011

Mulvaney on the Severance Rehearing and Location vs. Purpose

Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson.  I meant to get to it last week, but I wouldn't have done half as good a job.  But I also encourage you to do as she suggests and listen to the oral argument yourself.

But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing.  Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.

[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson.  In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland.  But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:

Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable?  Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary? 

The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.).  There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static.  At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude.  Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose.  I would be interested to hear other analogies or perspectives off-blog (tmulvaney@law.txwes.edu), or even on-blog if you are so inclined.  Thank you for your time.

Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!

Matt Festa

April 28, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Oil & Gas, Property Rights, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Monday, April 4, 2011

The Final Four and Land Use in the Unzoned City

Img_0468 As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach.  As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home.  So of course you must be thinking "how is Festa going to turn this into a land use issue?" 

Already done, with my students' help.  On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story.  The lead story was something about the then-upcoming Final Four.  So here's some of what we came up with on the fly:

Land assembly--where did they get the land to build the stadium and the parking?  It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums. 

Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival.  It's impressive that they could retrofit for the Final Four so quickly.

Transportation--can people get there?  Do the roads need to be widened, etc.?  If so, who pays, and are there legal changes needed?  Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend.  Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?

Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority.  Plus the transportation is governed by a separate Metro agency.  However a lot of coordination is necessary for big events like the Final Four. Final Four 010

Facilities--lots of people coming in from all over the country; where do they stay, etc.  For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown.  The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use).  The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held.  All of this is just a few blocks from where I teach at South Texas College of Law.  Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space.  Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.

So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled.  It's been fun having all the activity in town, and . . . Go Butler!

UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut.  The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off.  "The Road Ends . . ." = land use metaphor?  Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M. 

Matt Festa

April 4, 2011 in Development, Downtown, First Amendment, Green Building, History, Houston, Humorous, Local Government, Planning, Politics, Property, Property Rights, Scholarship, Signs, Sun Belt, Teaching, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

Rehearing--and panel discussion--on Texas Open Beaches Act

Late last week, the Texas Supreme Court granted a rehearing in Severance v. Patterson, the case decided last November holding that the Texas Open Beaches Act does not establish a public easement for dry-sand beach access without proof of dedication, prescription, or custom, and that public access easements do not "roll" inward with the vegetation line after major avulsive events such as hurricanes.  Hard to say what this portends, but it can't be good news for the plaintiff-appellant.  After the decision, lots of amicus briefs, particularly from local governments, started pouring on the motion for rehearing.  Here's a link from the Supreme Court of Texas Blog.

I blogged about the decision in a post which includes a multitude of links to the opinions; to the Texas Supreme Court's webpage for the case (great for finding the amici on the motion for rehearing); to the statute and constitutional amendment; and to various briefs including (full disclosure) my amicus and that of Surfrider Foundation.  Oral arugment on the rehearing (not very often granted, as I understand it) is set for April 19.

In the meantime, let's do what we lawyers do best, and talk about it!  The Texas Wesleyan School of Law in Fort Worth is hosting a Severance v. Patterson Panel Discussion next Friday, March 25, at 11:30.  It will be co-sponsored by the student chapters of the Federalist Society and the Environmental Law Society, and will feature Pacific Legal Foundation attorney David Breemer, lead counsel for the plaintiff; Ellis Pickett, Chairman of the Upper Texas Chapter of the Surfrider Foundation and amicus curiae for defendants; and yours truly.  The event will be moderated by Texas Wesleyan land use scholar Prof. Timothy Mulvaney.  If you can be in DFW next week to join us, please do!

Matt Festa

March 16, 2011 in Beaches, Caselaw, Coastal Regulation, Conferences, Judicial Review, Local Government, Property Rights, State Government, Takings, Texas | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 9, 2011

Super Land Use Bowl

In class, we started off the week with a quick session of Current Events in Land Use (aka, what-can't-Festa-turn-into-a-land-use-issue).  The topic?  Super Bowl.  The students were prepared.  Here's what they came up with:

The weather.  Of course that was on everyone's mind last week all around the country, with blizzards in the northeast and midwest, and even a snow day in Texas.  But Dallas had it particularly rough, affecting travel both to and around the DFW metroplex.  When the Super Bowl is held in New Jersey in 2014, the weather may be worse, but I predict that it won't cause as many problems as it did in Dallas because it isn't (usually) rational for a city like Dallas to make the local government investments in snowplows, employees, and materials (salt) that will be on hand in NJ.

The parties.  The worst weather was earlier in the week, so not that big a deal, right?  I didn't realize this until the big game came to Houston in 2004, but the Super Bowl brings a full 1-2 weeks of celebrities, money, and parties--everything from huge VIP bashes to public street parties.  Unlike any other sports event that I know of.  And these things take lots of permits, approvals, resources, and land use coordination with local governments.  I even have it on good authority from a DFW land use prof that there were private helicopter services to take people from party to party.  I remember my very first assignment as an associate was to research the Houston sign code for a client who wanted to do a lot of temporary advertising during the Super Bowl festivities.  Probably lots of SOB issues too.

The stadium issue.  I'm sure you've all heard about controversies over sports teams' demanding new facilities, and the debate over whether the projects prove as economically beneficial as promised.  The nearby baseball Ballpark at Arlington was built in the early 1990s using public funding and eminent domain (under the supervision of then-owner George W. Bush).  Apparently the same tactics were used for the recently-built (just in time for the team to not play in the Super Bowl!) Cowboys Stadium.  Another land use issue is the location--out in the suburbs.  One student told me that team owner Jerry Jones tried to get it built close to downtown, but for issues of either land assembly or zoning and permitting (or maybe tax issues too), it couldn't get done.

I'll add one more: the team names.  I take no side in the Clowney-Edwards debate at Property Prof Blog (though I did see a "Cheesheads for Obama" pin at the junior scholars conference in Albany).  But I like the fact that these two team names say something about their cities' histories, and of course, land uses: Pittsburgh is obviously a steel town, and Green Bay's team is named after its meat-packing industry.

So that was in land use class.  In my Property I classes, I simply noted that at the end of last week I predicted that the final score would be Packers 31, Steelers 24; and that the actual score was Packers 31, Steelers 25.  So there!

Matt Festa

February 9, 2011 in Development, Eminent Domain, History, Local Government, Politics, Suburbs, Texas, Transportation | Permalink | Comments (0) | TrackBack (0)

Friday, February 4, 2011

Snow Days in Texas and Elsewhere

Today I am in my hometown of Albany NY, trudging through waist-high ramparts of plowed snow.  Much of the US has suffered tremendous snowfalls/blizzards in the past week.  Back in my current home of Houston, TX, my family and students are having a "snow day" because they anticipate maybe getting some white stuff.  Since the typical transplanted-yankee reaction is to scoff at the inability of southern cities to deal with snowy weather, I think it's worth editing and reprising this post from last year, where I defend the local government choice to take the occasional shutdown over the necessary land use investment for snow removal:

Snow Day in Texas

Hard to believe, but it might snow today in Houston. Such weather is pretty rare in Houston.  My law school has closed for the day in mere anticipation of snow.

I grew up in upstate New York [where I am today, in Albany], where the average January temperature is 22 F (compared to Houston's 55 F); average winter snowfall was 64" (compared to Houston's < 0.05").  Tennessee, where I lived for about eight years as an adult, is just far enough north to get some decent snowstorms each winter, but overall it has a much warmer, and shorter, winter.  Yet it seemed that in Tennessee the authorities were constantly cancelling school and shutting the city down.  Often the schools had to extend their year to make up for all of the snow days.  In New York we hardly ever lost a day of school due to snow; perhaps 0-2 per year.  Even a 12-inch snowfall was not a problem, while in Tennessee they would preemptively close for a forecast of snow.

Fellow northern transplants and I would snicker at all this.  You call this a snowstorm?  I chalked up the different approaches to the hardiness of our yankee constitutions.  But eventually I think I figured out what might be the biggest factor in the different regional reactions, and it's a land use & local government issue.  Albany County's snow removal budget for supplies alone (salt, fuel) is $1,217,500.  This doesn't include the operating costs for personnel, nor the capital outlays for the equipment; a new snow plow can cost a city around $200,000.  Chicago's total snow removal budget is $17 million

So while these types of expenditures are necessary in northern cities, it wouldn't make sense in warmer climes to purchase and maintain the equipment, supplies, and personnel necessary for snow removal capability.  In Houston a freak storm like today's doesn't happen often enough to remotely justify the expense.  It becomes a more difficult question for places in the latitudinal middle, like Tennessee and Kentucky.  One could measure the economic impact of lost school and work days and business in the area, and compare it to the costs of snow removal.  But even that would still need to make some predictive assumptions based on variance from year to year.  (Besides, why invest in a snow plow when Georgia will soon be underwater due to global warming?) 

Assuming rational actors, one would think we could draw lines between the places where it is more efficient as a matter of municipal policy to do snow removal, and those where it is more efficient to simply ride out the storms as they come.  Obviously there are a lot of other factors for planners in making this decision, including geography, the urban/suburban/rural character of the place, and other unique factors.  Plus there are the politics of snow removal (a blizzard is said to have altered the outcome of Chicago's mayoral primary in 1979). 

But obviously it would never make sense on the Gulf Coast, so we'll just hunker down as we watch the freak snowfall today (my three-year-old [now four, and still talking about last year's snow] has no idea what this stuff is).  But don't feel bad for me-- it will be back up to 74 F by Tuesday. 

So take that, yankees.  As Jessica points out, in Buffalo they make the social land use adjustments that are necessary, but they take a rational approach in Houston too.  I might reconsider this stance tonight after I freeze off my fourth point of contact. 

Matt Festa

UPDATE: No snow in Houston, but everything's frozen.  Contrast the icy fountain in front of my Houston apartment with the snowdrifts piled high in front of my childhood home in NY.  Yet the local government responses are as different as the respective amounts of frozen H2O. 

MJF 2-2011 113 Albany Feb 2011 017

 

 

 

 

 

 

February 4, 2011 in Climate, Georgia, Houston, Local Government, New York, Planning, Politics, Sun Belt, Texas | Permalink | Comments (0) | TrackBack (0)

Sunday, January 30, 2011

Road running as a land use tour

IMG_0112 Today was the Houston Marathon, in which your humble blogger was joined by 26,000 others in self-inflicted pain and suffering.  It occurred to me--in between bouts of cursing my foolhardy decision to enter the race--that running is a great way to observe land use in a city or town.  It allows one to tour cities and neighborhoods more slowly than in a car, but faster than walking.  And a race as long as a marathon gives you the chance to visit several areas in a city and observe both the use patterns within each neighborhood and the differences between them.  The Houston Marathon course directs its runners through several of the more interesting neighborhoods in the city (albeit all in the "favored quarter").  The official race program describes several of the neighborhoods on the course:

Downtown. Downtown Houston is the seventh largest downtown business district in the United States and has the third most concentrated skyline after New York City and Chicago.  [I should also note that the race started and ended at Discovery Green, a new urban park generally thought to be a highly successful planning and local government accomplishment.] 

The Heights.  Founded in 1891, The Heights was one of Houston's first suburbs and is best known for its tree-lined streets, beautiful parks and assortment of new homes, Victorian-era houses, and Craftsman bungalows.  [One of the original "streetcar suburbs."  In the Unzoned City, HP is a big issue in The Heights as a way of controlling development.]

Montrose.  The Montrose area is considered one of Houston's most eccentric areas, and hosts a diverse community of young adults, business professionals, punk rockers and artists . . . . It is an area made for pedestrians where people can walk and cycle easily.  [The APA named Montrose one of America's Top 10 Neighborhoods].

Texas Medical Center/Rice University.  The Texas Medical Center is the largest medical district in the world, containing 42 medicine-related institutions.  [You may have seen in the news recently that Rep. Gabrielle Giffords is now being treated here].

The Galleria.  The Galleria area, also known as Uptown, is Houston's best-known shopping district and second-largest business district.  [One unusual thing about Houston is that there are four or five disparate business districts that would each qualify as "downtown" or the CBD in most cities].

Memorial Park.  Opened in 1924 and covering 1,466 acres, Memorial Park is one of the largest urban parks in the United States.

Just from these introductory descriptions, you can see how a comparison of one city's neighborhoods invokes both local and national land use issues.  Running through the city was a great way to get a tour of the visual characteristics on the ground.  At least that's what I'll be telling myself as I hobble to land use class in the morning. 

Matt Festa

January 30, 2011 in Downtown, History, Houston, Local Government, New York, Planning, Texas, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, December 31, 2010

. . . Hello 2011!

Happy New Year to the land use community!

I've noticed a trend in the last few years of more cities putting on a New Year's or "first night" celebration downtwon.  That's an encouraging sign for the increasing health of urban communities.  This year, Houston is finally getting into the act with Gloworama in the new downtown park, Discovery Green

Another New Year tradition that some of you might not be familiar with is fireworks.  I have the window open (it's 70 degrees here) and can hear the bombs bursting in air.  Fireworks are illegal in the city of Houston, but are legal in most of the unincorporated parts of Harris County.  Fireworks law has actually been a fairly big issue, with state laws and local laws striking a balance that allows them to be used in some places at some times--with lots of exceptions for proximity to churches, schools, etc.  You may not think that the churches or schools are fully populated at midnight, but I suspect that these exceptions have something to do with the fact that these tend to be the established exceptions to generally-applicable land use regulations.  Also, fireworks can only be sold for only a few weeks before Independence Day and New Year's. 

Stay safe, and have a Happy New Year!

Matt Festa

December 31, 2010 in Houston, Local Government, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Decision on Open Beaches Act / Rolling Easement case (Severance v. Patterson)

The Texas Supreme Court issued its opinion today in Severance v. Patterson, a case that the Fifth Circuit certified on questions of interpreting state property law and the Texas Open Beaches Act (provisions which last year became part of the Texas Constitution).  The plaintiff owned beachfront property that ended up forward of the vegetation line after the damage wrought by Hurricane Rita in 2005.  The state informed her that her houses were now on the public easement and that the houses could be subject to a removal order.  The plaintiff claimed both a Fifth Amendment taking and, unusually, a Fourth Amendment unreasonable seizure.  The Fifth Circuit held the takings claim unripe but certified three questions to the Texas Supreme Court:

1.  Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied? 

2.  If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the [Open Beaches Act]?

3.  To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas’s law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?

The Court held (6-2) that the Act does not establish a rolling easement, at least to the extent that the state asserted--essentially siding with the plaintiff:

On this issue of first impression, we hold that Texas does not recognize a “rolling” easement on Galveston’s West Beach.  Easements for public use of private dry beach property do change along with gradual and imperceptible changes to the coastal landscape.  But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.  This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line.  That result would be unworkable, leaving ownership boundaries to mere guesswork.  The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, even when boundaries seem to change suddenly. The State, as always, may act within a valid exercise of police power to impose reasonable regulations on coastal property or prove the existence of an easement for public use, consistent with the Texas Constitution and real property law.

Full disclosure: I submitted an amicus brief in the case.  My position is that the rolling easement question can only be reached with respect to properties where the state has first established that the public has a beach access easement through the traditional common law doctrines of (1) dedication, (2) prescription, or (3) custom.  In other words, the statute does not establish a statewide beach access easement; it only purports to prescribe rules for easements otherwise established.  Keep in mind that the public trust doctrine that many of us learn about (e.g. the Matthews case from NJ) does not apply here, as the Court noted, devoting much of its opinion to tracing the historical lineage of title to Texas coastal lands.  I'm as much for public beach access as anyone, but regardless of whether the easement rolls inward with the vegetation line, the state still has to establish that there is an easement in the first place.  

Now the case heads back to the Fifth Circuit, and we are left with a very significant ruling interpreting the Open Beaches Act.  Many will criticize the opinion, which could make it much more difficult, practically and/or financially, for the state to establish public beach easements.  The opinion also seems to leave undecided where to draw the line between merely "gradual" changes in the high tide line and more "dramatic" changes due to avulsion.  It will be seen as a big win for the Pacific Legal Foundation, which represented the plaintiff, and by other libertarian and property rights advocates.  The opinion cites Stop the Beach as well as a host of other famous land use cases, and will be of interest to those working on coastal land use and property rights generally.

Here are some links:

The majority opinion (Wainwright, J.)

The dissent (Medina, J.)

The video of the oral argument (courtesy of St. Mary's Law School)

The Texas Supreme Court's web page for the case with links to all briefs.

The Fifth Circuit's opinion

The Texas Open Beaches Act

Land Use Prof Blog analysis

My amicus curiae brief

The Houston Chronicle's initial writeup

Texas Lawyer article Battle for the Beach

The Pacific Legal Foundation press release (David Breemer, counsel for plaintiff)

The Surfrider Foundation (amicus brief written with assistance from one of my students)

[UPDATED from original post at 11:00 pm]

Matt Festa

November 5, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Inverse Condemnation, Judicial Review, Property Rights, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Thursday, November 4, 2010

National Preservation Conference in Austin . . . and Buffalo

We mentioned that last week the National Trust for Historic Preservation had its annual meeting in the Weird City, Austin TX.  There are reports from the conference available on the Trust's website.  There is a video available of the opening plenary session, featuring National Trust President Stephanie Meeks, Laura Bush, and New Yorker architecture critic Paul Goldberger.  

Now the HP community can look forward to next year's National Preservation Conference in Buffalo!  If you're skeptical, check out this video, which correctly points out that Buffalo is a gem for architecture, late 19th/early 20th C. city planning and design, and a great site for discussing contemporary preservation issues with respect to older cities.  The video has gotten some local attention and has allegedly "gone viral" in Buffalo.

Matt Festa

November 4, 2010 in Architecture, Conferences, Economic Development, Historic Preservation, History, Lectures, New York, Texas | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

Designing Tomorrow Blog

I've previously blogged about the National Building Museum's exhibition Designing Tomorrow: America's World Fairs of the 1930s.  Now I've learned that the project has an official blog: the Designing Tomorrow Blog.  

Looks like a great way to learn more about the exhibition . . . at least until you get to DC to see it (such as during ALPS in March!).  So far there is a series of introductory posts to outline the exhibition, and an interview with Bob Rydell (Montana), which promises to be the first of a series of conversations.  I look forward to learning more about this fascinating exhibition.  

Matt Festa

October 28, 2010 in California, Chicago, Conferences, History, New York, Planning, Scholarship, Texas | Permalink | Comments (0) | TrackBack (0)

Friday, October 22, 2010

2010 National Preservation Conference--Austin

Next week the National Trust for Historic Preservation holds its annual National Preservation Conference in the weird city, Austin, Texas, from Oct. 27-30.  Looks like a great event, with the program available online.  Featured speakers include New Yorker architecture critic Paul Goldberger and Interior Secretary Ken Salazar.  Here's the conference blurb:

Prepare yourself for a completely new National Preservation Conference experience! To complement our future-focused Austin theme, we’ve planned dynamic new programs that encourage conversation and interaction, and spotlight 21st-century preservation imperatives.

Join hundreds of grassroots volunteers, skilled professionals, and preservation experts exploring preservation today -- in urban and rural settings across the United States. We’ll focus on the conventional and the controversial issues that arise every day, and share the most effective tools and practices for fostering preservation in any community.

Can't make it out to Austin next week?  Don't worry, you can attend the conference virtually, with lots of web content and social media planned to be available.  Great idea.

Matt Festa 

October 22, 2010 in Architecture, Conferences, Historic Preservation, Planning, Texas | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

Designing Tomorrow: America’s World’s Fairs of the 1930s

The National Building Museum has announced a new exhibition: Designing Tomorrow: America’s World’s Fairs of the 1930s, from Oct. 2 (Saturday!) thru July 10, 2011.  It sounds absolutely fascinating:

Between 1933 and 1940 tens of millions of Americans visited world's fairs in cities across the nation.Designing Tomorrow will explore the modernist spectacles of architecture and design they witnessed -- visions of a brighter future during the worst economic crisis the United States had known. The fairs popularized modern design for the American public and promoted the idea of science and consumerism as salvation from the Great Depression. . . . 

A first-of-its-kind exhibition, Designing Tomorrow will feature nearly 200 never-before-assembled artifacts including building models, architectural remnants, drawings, paintings, prints, furniture, an original RCA TRK-12 television, Elektro the Moto-Man robot, and period film footage. The artifacts are drawn from the featured expositions: Chicago, IL—A Century of Progress International Exposition (1933–34); San Diego, CA—California Pacific International Exposition (1935-36); Dallas, TX—Texas Centennial Exposition (1936); Cleveland, OH—Great Lakes Exposition (1936-37); San Francisco, CA—Golden Gate International Exposition (1939-40); and New York, NY—New York World's Fair (1939-40).

These world's fairs had a profound influence on American culture and ideals for land use.  I've blogged about the 1893 Chicago Columbian Exposition before and its impact on the origins of land use planning.  This group from the 1930s also had a profound impact on Americans' notions of modernism, suburbia, and even on the inspiration for Disney World (hey Chad!).  Can't wait to see this next time I'm in DC.  If you're going to ALPS in March, the National Building Museum is only a couple of blocks away from Georgetown Law, so definitely plan to check it out!

Matt Festa

September 28, 2010 in Architecture, California, Chicago, Conferences, Development, History, New York, Planning, Suburbs, Texas, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, August 26, 2010

America's Ten Dead Cities

From time to time here on the land use prof blog we post a link to one of the ubiquitous "top" lists that various media outlets like to publish about America's top cities for business, living, etc.  I see a lot of these because a trend in recent years has been for Texas cities to dominate these lists, at least when they are based on economics.  Here's a related, but more depressing list: America's Ten Dead Citiesfrom the site 24/7 Wall Street.  The cities:  

(1) Buffalo; (2) Flint; (3) Hartford; (4) Cleveland; (5) New Orleans; (6) Detroit; (7) Albany; (8) Atlantic City; (9) Allentown; (10) Galveston.

Read the story to get a sense of the narrative arcs of these once-prosperous cities fallen on harder times. Mostly, it won't surpise you.  Other than the two Gulf Coast cities on the list (both of which (#5 & 10) I still visit regularly), they are mostly post-industrial Northeast or Great Lakes cities (including my birthplace (#8), my hometown (#7), and another place I lived as an adult (#4)).  Of course, Billy Joel was already lamenting the decline of #9 back in 1982 (come to think of it, Bruce Springsteen told a pretty dark tale about #8 before that).  It's interesting for us not only because of how much city economies have driven land use planning, but also because we need to consider the historical trajectory of these cities when considering policies to shape cities going forward.  

Matt Festa

August 26, 2010 in Detroit, Downtown, Economic Development, History, Local Government, New York, Texas | Permalink | Comments (1) | TrackBack (0)

Saturday, August 7, 2010

The Atlantic on How Texas is Dominating the Recession

I'm back in Houston from a visit to points far north.  I thought up some blog posts while traveling, but I'll mark my return to the Lone Star State with a link to this article from The Atlantic by Derek Thompson: How Texas is Dominating the Recession

SAN ANTONIO -- No state is thriving in the wake of the Great Recession. But compared to the rest of the country, Texas is experiencing something like an economic boom.

Thompson offers four reasons for Texas' relative success: (1) a late start; (2) stable real estate; (3) the right mix of industries and economic activities; and (4) "something about Texas," particularly its taxing and regulatory climate.  More on reason #2:

2. Stable Real Estate
Real estate executives and economists struggled to find one reason why the Texas economy largely avoided the real estate boom and bust, but a few theories emerged. First, San Antonio Mayor Julian Castro suggested that a reliance on property taxes in Texas (compared to California) might have dulled real estate appreciation. Second, the banks that survived the Savings and Loan crisis in the 1980s have mostly held onto conservative and un-exotic lending practices. Third, land and utilities are generally cheaper throughout Texas, which holds down the cost of the living. Fourth, besides Dallas, Texas' major cities have diversified away from the kind of real estate and financial services addiction that plagued CaliFlAriVada (that's CA, FL, AZ, NV), where the recession has been the most severe.

Matt Festa

August 7, 2010 in Economic Development, Financial Crisis, Houston, Real Estate Transactions, State Government, Texas | Permalink | Comments (1) | TrackBack (0)

Monday, May 17, 2010

Alexander on Wind Energy in Texas

Alan J. Alexander (JD Candidate, Michigan) has posted The Texas Wind Estate: An Argument for the Recognition of the Wind as a Natural Resource and a Severable Property Interest.  The abstract:

As a renewable resource, the wasteful practices in the development of wind energy raise different concerns and come in different forms than waste in the oil and gas industry. Nonetheless, waste of the wind is no less harmful than the waste of oil if the underlying policy goal of the state is to maximize the use of its energy resources. To maximize the use of the state’s energy resources, the state needs the power to regulate the wind to mitigate wasteful practices, and landowners need a property interest that they can market or exploit and that the courts can recognize and protect. Yet, it is unclear if the state has full regulatory power over the wind, or if wind ownership is incident to land ownership. Thus, to address these issues will require the resolution of at least three legal questions, the answers to which are essential to the course of development of wind energy in the state of Texas.

The first question is whether the wind is considered a “natural resource” like oil or percolating water, such that the legislature can pass laws to regulate it under Article XVI, Section 59 of the Texas Constitution. The next question is whether the wind is subject to ownership in the state of Texas. The wind blowing over one’s land could be subject to ownership in Texas under common law in a manner analogous to the theory of percolating water, a theory of ferae naturae, a unified fee theory of ownership, or surface water law. The final question that must be answered is whether a landowner’s interest in the wind that flows over his land is severable from the surface estate. Despite the lack of legislative and judicial guidance on this question, wind leases in Texas are typically written as if wind rights are severable. Yet it is unknown if Texas courts will recognize the severability of a wind estate. 

This Note argues that the Texas Legislature should pass laws clarifying that the wind is a natural resource, and that in order to promote “[t]he conservation and development” of the wind as a natural resource, the legislature should statutorily recognize wind rights that are a severable interest in land ownership. Part I offers a brief comparison of the early wasteful history of the oil and gas industry in the state of Texas with the early development of the Texas wind industry, and discusses the problem of waste of the wind. Part II addresses whether the wind is a natural resource, the legal theories that could support a property interest in the wind, and the debate as to whether those wind rights should be a severable interest. Part III lays out the argument in support of the Texas Legislature enacting laws to clarify that the wind is a “natural resource” under the Texas Constitution, that there is a recognized property interest in the wind, and that the interest is severable. The Note concludes by summarizing the necessity of clarifying wind energy law, and the benefits of doing so for the development of wind energy in Texas.

Matt Festa

May 17, 2010 in Environmental Law, Property Theory, Scholarship, State Government, Texas, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Texas Sprawl Goes Out With a Bang

They imploded Texas Stadium recently, which was in the suburban city of Irving in the DFW metroplex.  What is Irving going to do with all of that land?  Turns out they have a plan, as described in this story: Texas Sprawl Goes Out With a Bang: Development Sprouts on Irving Transit Line.  

Once the last traces of Texas Stadium are cleared away this summer, Irving intends to dust off plans drafted 10 years ago to transform the Cowboys’ former home and the surrounding acreage into the densest, most walkable neighborhood in the Dallas-Ft. Worth Metroplex outside of downtown Dallas. An extension of the Dallas Area Rapid Transit (DART) Orange line is slated to run through the stadium footprint on its way from downtown to Dallas-Ft. Worth (DFW) International Airport. . . . The stadium site is the next piece in its urban puzzle.

That piece has three owners -- Irving, the neighboring University of Dallas, and Southwest Premier Properties, a private developer -- whose holdings comprise 468 acres. The plans the three chipped in for 10 years ago (and resulting zoning) call for things like four- or five-story apartment blocks with ground floor retail rather than single-family homes. (The Greater Irving Las Colinas Chamber of Commerce tossed some renderings up on its Web site Monday. “’Urban-suburban,’ is a phrase we’ve been using a lot lately, says Maura Gast, the executive director of Irving’s Convention & Visitors Bureau, referring to the notion of urban densities in a suburban setting. “Everywhere the DART is going is driving more density. The market will support it; developers have started jockeying along that path.” Where the stadium once stood, Gast would like to see something like Chicago’s Millennium Park -- at least she has the acreage.

Part of the reason for the assessment of market demand for urbanism is that the nearby Las Colinas area that is home to corporate offices but lacking in other dimensions.  

The glittering towers featured in the opening credits of Dallas -- one pair seemingly clad in gold leaf, another as black and viscous as an oil slick -- lie not in Dallas proper, but in the remnants of El Ranchito de las Colinas, the 12,000-acre “Little Ranch of the Hills.” The same year DFW opened just west of it in 1973, owner Ben Carpenter unveiled his master plan for a wholly-owned-and-operated city carved from those mesquite-shrouded hills -- the largest urban development in the country. Before a single plot of land was sold, he ordered the dredging of lakes and canals, stocked them with gondolas, and ran a monorail overhead. "It is Disney World for the affluent," Texas Monthly reported in the 1980s.  [paging Chad Emerson!]  "In fact, when executives from Disney World visited the development a few years ago, one of them commented that it was a shame ol’ Walt couldn’t have lived to see the real thing."

What’s most interesting about Irving’s plans to add density in its last undeveloped corner is the tacit admission that Las Colinas’s gold-plated office parks and single-family homes are no longer enough. "The piece that has always been missing from Las Colinas is the human density that’s missing on weekends and at nights," says Gast. The reason for adding that piece is an eminently practical one -- it’s what those corporate tenants, their workers and developers all want. Irving is embracing transit-oriented development because it thinks it can make money doing it.

Matt Festa

April 20, 2010 in Density, Local Government, Planning, Redevelopment, Smart Growth, Sprawl, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 7, 2010

Fess Parker, RIP

You may have heard the news a couple of weeks ago that Fess Parker passed away on March 18, 2010.  The actor was most famous for his iconic portrayal of Davy Crockett in the Disney tv/movie series in 1954.  My students will tell you that one of my little-known (and probably little-valued) talents is that Prof. Festa can turn anything into a land use story.  So here we go . . .

Davy Crockett, if you know the Disney theme song, was "King of the Wild Frontier."  He was born on a mountain top in Tennessee, which happened to be the greenest state in the land of the free.  That in itself speaks to American conceptions of land use.  Understanding that the Disney version was a 1950s conceit, let's put that aside for a moment and look at the Davy Crockett legend. 

Some critics have complained that the Davy Crockett popularity of the 1950s was contrived or manufactured.  But they miss the point that the original Davy Crockett legend of the 1830s was also entirely manufactured.  I don't doubt that Crockett the man was handy with a rifle and earned his frontier bona fides, but so did a lot of people in his time.  Crocket went to Congress and had a best-selling autobiography based on his marketing of himself as the epitome of a frontier archetype.  Coonskin cap and all that.  The dandies on the East Coast ate it all up.  But it was an early example of the mythic power of the west in American memory: the notion that the land is untamed, and due to be settled and made productive by Americans of rugged determination and character. 

Fess Parker's portrayal followed Crockett from the frontier to Congress and then down to Texas.  I've bloggged about the role of the Alamo in Texas historical memory.  Here the land use story, as Crockett participates in it, transforms from taming the frontier to defending natural "American" rights to possess and use the land against oppression.  We'll set aside for now the controversy over whether Davy Crockett actually tried to surrender at the Alamo, as opposed to the mainstream/Disney portrayal as having gone down swinging. 

Parker's portrayal of Crockett as an American frontier archetype of quiet heroism, conviction, and moral certitude, was so popular (we'll return to the 1950s context in a moment) that he was essentially typecast out of many other roles.  Parker's second major role was Daniel Boone in a highly popular TV run from 1964-70.  I've always thought of Boone and Crockett as very different figures (Boone was a half-century older) but historical memory and pop culture have reduced them to the same coonskin cap.  Daniel Boone was perhaps the original American symbol of expansive land use.  Boone was the leader of the pioneers who settled Kentucky, and later in life he moved to Missouri because he needed more "elbow room," according to legend. 

So Fess Parker portrayed two iconic historical figures who symbolized the American frontier story of land settlement and development.  Fast forward to the 1950s.  When Disney showed Parker's Crockett in 1954-55, America went nuts.  They couldn't make fake coonskin caps fast enough to sell to boys in the U.S., England, and elsewhere.  So we can also place Parker's Crockett as a very important event in the story of postwar suburbanization.  Millions of families in Levittowns and other new  neighborhoods  gathered around their relatively new TVs to enjoy the Disney presentation of the American story as told through Fess Parker's Crockett.  The popularity of the show became one of the defining moments of the postwar era.

One last item that cements Fess Parker as a legend of land use is his post-Hollywood career: he became a real-estate developer!  Parker developed a number of properties in southern California, including hotels, resorts, and a winery that bears his name.

Farewell Fess Parker, American land use icon. 

Matt Festa

April 7, 2010 in History, Property, Texas | Permalink | Comments (0) | TrackBack (0)

Saturday, March 6, 2010

Remembering the Alamo

Line Sand Today is the 174th anniversary of the fall of The Alamo on March 6, 1836 during the Texas Revolution.  As the story goes, the vastly outnumbered Texian forces under siege bought crucial time for the rest of the army by holding out for two weeks until succumbing to the Mexican army under General Antonio Lopez de Santa Anna.  Cries of "Remember the Alamo" supposedly motivated the Texians at the decisive Battle of San Jacinto.

It would be hard to exaggerate the importance of The Alamo to the founding narrative and historical memory of Texas.  Though it was once a Catholic mission, it is secular "sacred ground" to many Texans.  I know people who proposed to their spouses at the Alamo.  Yet the Alamo has also been seen as symbol of racial or ethnocentric overtones to the Texas Revolution.  The importance of the Alamo-as-land has played out in several land use controversies over the last two centuries.

An excellent book that reviews the history of both The Alamo and its place in cultural memory is Randy Roberts & James S. Olson, A Line in the Sand: The Alamo in Blood and Memory (2002).  The authors begin with the history of the Alamo itself and the battle, and then spend the remainder of the book talking about what happened to it both as a piece of land and as an icon.  Apparently it fell into disrepair (blight?) for decades after Texas independence as the city of San Antonio grew up around it (those who imagine it from the John Wayne movie, way out in the open, are often startled when they finally visit it in busy downtown San Antonio).  Then, in the late 19th and early 20th centuries, the Alamo became increasingly the subject of myth-making.  This in turn inspired one of the early historic preservation efforts, through a private organization run by some of the most prominent women in Texas.  There was a dispute over whether the preservation should be as a private or a public landmark.  The book tells this interesting story plus relates a number of other controversies about the Alamo as a symbol of Anglo-American manifest destiny and as John Wayne's vision of the Alamo as a Cold War story.

The book's title invokes both the "line in the sand" supposedly drawn by Lt. Col. Travis when it became clear the Texians were doomed, and also as a metaphor for the cultural contests over the historical memory of the Alamo as symbol.  But the "sand" itself remains a hugely popular tourist site and public space in San Antonio. 

Matt Festa

March 6, 2010 in Books, Historic Preservation, History, Race, Scholarship, Texas | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Texas Independence Day

Political junkies have their eyes on Texas today because of the gubernatorial primary battle between GOP stalwarts Gov. Rick Perry and Sen. Kay Bailey Hutchison.  But March 2 has an even greater significance for Texans: it is Texas Independence Day. 

On March 2, 1836, at Washington-on-the-Brazos, while Travis, Crockett, and Bowie were hunkered down at the Alamo, the "Delegates of the People of Texas" signed the Texas Declaration of Independence.  It begins:

When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.

So property rights are in the first sentence of the founding document.  Also, of course, we can think about a war of this type as sort of an ultimate contest over land use.  At any rate, much of Texas's culture and some of its contemporary controversies stem from the 1836 conflict and its cultural memory--particularly with respect to land use and property rights.  For better or worse, Texas is more influenced today by its own founding narrative than perhaps any other state.

I'm not from Texas, but (as they say) I got down here as quick as I could.  It's a great place to study land use law because of its history, geography, economy, demographics, and culture.  (And then there's Houston . . . .)  I have a backlog of Texas-related items for the blog, so I might just do a little more Tex-blogging in the coming weeks.

Matt Festa

March 2, 2010 in Property Rights, Texas | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Kiechel: The Nonprofit that Saved Central Park

In the recent issue of City Journal Conrad Kiechel has an interesting article titled The Nonprofit That Saved Central Park: Thirty years after its founding, the Conservancy inspires other cities.  From the article:

I remember a very different Central Park when I was a college student in Manhattan in the 1970s. I even recall passing through the Ramble. Countless creatures called it home then, too—most of whom you wouldn’t want to run into, day or night. The park’s lawns were dust bowls; its trees’ limbs were broken, their roots exposed; graffiti and inoperative lights marred the once-manicured landscape designed by Frederick Law Olmsted and Calvert Vaux. “It was so awful,” recalls Elizabeth Barlow Rogers, an urban planner from Texas who became the park’s administrator in 1979. “Central Park was under a unionized, civil-service workforce. They were demoralized. It would take three men to prune a tree because of the job titles.”

The change began when Rogers formed an alliance with Parks Commissioner Gordon Davis. Davis started cutting deadwood in his department, a traditional dumping ground for patronage jobs. He also decentralized his department’s operations—first down to the borough level, then to the park level. And Rogers championed the idea that private money and workers would play a key role in the park’s restoration. The Central Park Conservancy was born in 1980—what current park administrator Douglas Blonsky calls a “revolutionary public/private partnership that would bring private monies and expertise, in partnership with the City of New York, to manage and restore Central Park.” . . .

From around the world, visitors flock to Blonsky’s office to learn how the Conservancy’s public/private partnership model can help them restore their own parks.

The article has clear anti-union and pro-privatization implications.  It certainly does present the recent success of Central Park--an important historical and symbolic land use--within the compelling narrative of the restoration of New York City as the signal American metropolis. 

Matt Festa

February 14, 2010 in Environmental Law, History, Local Government, New York, Texas | Permalink | Comments (0) | TrackBack (0)