Thursday, October 9, 2014

Should More Land Use Professors be Libertarians? Part III (Final Post)

This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.  

That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state.  Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.

Local Governments and Participatory Democracy

Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures.  During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.

Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened.  Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.”  This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.

A False Utopia?

Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.

Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level.   While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence.  Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.

But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.

Ken Stahl

October 9, 2014 in Density, Development, Local Government, NIMBY, Nuisance, Planning, Politics, Sprawl, State Government, Urbanism, Zoning | Permalink | Comments (0)

Tuesday, October 7, 2014

Should More Land Use Professors be Libertarians? Part II

This post is, again, cross-posted fom the Concurring Opinions blog.

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent downtown-houston-at-night-1430683-sthe aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?

Nuisance Law

The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley?   A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.

This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.

To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.

The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)

Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government.  The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.

Ken Stahl

October 7, 2014 in Affordable Housing, Environmental Law, Local Government, NIMBY, Nuisance, Planning, Politics, State Government, Suburbs, Urbanism, Zoning | Permalink | Comments (0)

Monday, October 6, 2014

Should More Land Use Professors be Libertarians?

In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here.  Parts II and III to follow:

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

Continue reading

October 6, 2014 in Affordable Housing, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Sprawl, State Government, Suburbs, Urbanism, Zoning | Permalink | Comments (0)

Wednesday, September 17, 2014

Of DIY Urbanism and Electric Boxes

Last year I wrote an article about DIY Urbanism—modest, often illegal, transformations of urban physical space. A few examples of the phenomenon unfolded before my eyes during the year I recently spent in Jacksonville, Florida. Two of those examples involved artwork on utility boxes.

Roux Art box

Among my friends in Jacksonville were Kate and Kenny Rouh of RouxArt, artists whose stated mission is to “tile the town” with community-based mosaics.  One day thay casually mentioned their plans to spend that weekend installing a mosaic on a utility box in Hemming Plaza, a downtown public space fronted by City Hall, a Federal Building, and the Museum of Contemporary Art Jacksonville. Unfortunately, Hemming Plaza has received a lot of negative attention in recent years, some due to physical neglect and some in response to the use of the space by many homeless people. The artists’ goal was simply to respond to the negativity with action instead of handwringing by adding a positive feature to the Plaza. They later told me of their very enjoyable weekend interacting with plaza users who observed them working on the project. The final result is pictured at left. (To our amusement, local news outlets covering the sudden appearance of the mosaic credited it to an “unknown artist,” despite the fact that the RouxArt name is rather clear on one side of the pillar. RouxArt has worked with the City before, has appeared numerous times in local media, and is easily searchable online.) With its community-focused aesthetic and uniformly positive reception, RouxArt’s small artwork in Hemming Plaza is an example of DIY urbanism at its best.

The second, more complex story played out several major themes from my article: the heightened probability of enforcement when an intervention is controversial, the frequent shift from illegality to legality, and the need for simple process to allow DIY interventions to happen. My engagement—this time simply as a community member and spectator—started one day on my afternoon commute. While exiting a bridge, I noticed a bright figure in the style of a Keith Haring painting onto a free-standing electric box. According to local media reports, the artist called himself KHG, for “Keith Haring’s Ghost,” and that the small structure he had painted was actually a signal box, a previously-drab feature of the urban landscape housing an electrical mechanism that controlled the traffic light.

KHG love2
Over the next couple of weeks, I saw more, similar paintings, joyous additions to the cityscape on signal boxes throughout my Riverside neighborhood. In my article, I had noted that DIY urbanists who create interventions that enhance cityscapes rarely face legal sanction. Sadly, this did not apply to KHG: the City of Jacksonville arrested him in March, revealing his true identity as artist Chip Southworth and charging him with a felony for “damaging” the utility boxes.  The City attempted to justify its heavy-handed response in part with a theory that the paint colors might cause the signal boxes to overheat and malfunction.  However, another reason might be the fact that some of the works were overtly political, commenting on race relations, gun violence, and discrimination based on sexual orientation—issues that remain highly contentious in Jacksonville.  For example, an early work in the series portrayed an angel in a hoodie, standing in for slain teenager Trayvon Martin. (In contrast, RouxArt’s contribution to Hemming Plaza had been chiefly decorative.)  Southworth’s charge was later lowered to a misdemeanor; he pled no contest, performed community service, and agreed to pay fines and court costs totaling more than $1,000. 

KHG posing 2 KHG Southworth


In my article also noted that interventions with illegal origins sometimes gain legitimacy and, eventually, legality. That appears to be happening in Jacksonville, where the debate over KHG’s arrest has highlighted the need to legalize some street art, including a possible program for painting signal boxes.  Legalization of street art seems particularly appropriate given Jacksonville’s recent efforts to brand itself as a creative hub, with the creation of the One Spark Festival and a downtown arts district  to spur economic activity “through artistic energy, cultural vibrancy and exciting streetscapes.” As now-president of the Cultural Council Tony Allegretti noted in an interview with the Folio Weekly  before KHG's arrest, the only thing lacking was a simple process for legal street art projects: 

"I don't know why, necessarily, it's controversial...I was surprised to hear there was any kind of negativity around [KHG's works]. I think they add to the beautification of our neighborhoods. … The only thing left to discuss is, what's the process next time? In an ideal situation, we're one meeting away. How can we take something that lacks a process and create a process?"


As of this writing, the Cultural Council has submitted proposed legislation to achieve just that. Although KHG's vibrant signal boxes have all been painted over, his DIY street art may yet leave a more enduring mark on the city.

 

~Celeste Pagano, DePaul University College of Law

September 17, 2014 in Local Government, Urbanism | Permalink | Comments (0)

Tuesday, August 26, 2014

Historic Preservation During an Age of Fiscal Pressure

Funds for historic preservation programs, particularly those dealing with identifying, cataloguing, and managing historic resources, are typically slashed when the economy sputters.  Right now is such a time.  In my previous post, I discussed ARCHES--a free, online, user-friendly, open-source geospatial software system developed by the Getty Conservation Institute and the World Monuments Fund that is purpose-built to inventory and manage immovable heritage to internationally adopted standards.  Anyone can downloand and customize ARCHES to suit their needs.

Today I want to discuss a powerful, innovative but cheap technological tool that can aid authorities in their quest to create and/or update their historic resources digital inventory:  online crowdsourcing.  Simply put, online crowdsourcing allows someone to obtain needed services and/or content by soliciting voluntary contributions from the online public community rather than hiring employees or paying suppliers.  Online crowdsourcing has been an extremely effective tool for preserving cultural heritage in many countries.  For instance, the National Library of Finland is using online crowdsourcing to index its scanned archives.  Similarly, the University of Cape Town in South Africa is using online crowdsourcing to transcribe collections containing the Bushman’s language, stories, and way of life.  The National Geographic Society is using online crowdsourcing to analyze millions of satellite images of Mongolia showing potential archaeological sites in the hopes of discovering the tombs of Genghis Khan and his descendants.  And an English non-profit organization has utilized online crowdsourcing and online crowdfunding—funds donated by the interested public online—to provide both finances and labor for an expert-led excavation of a Bronze Age causeway composed of millions of timbers in the Cambridgeshire fens.  And perhaps most relevant to experiences of local governments in the United States, the City of Los Angeles has created a website, MyHistoricLA.org, that allows citizens to map and submit information about places of cultural importance to them which may not be architecturally significant (and thus escape the purview of preservation officials).   

Drawing on the crowdsourcing experience of others, local governments and cities in the United States could create an online portal attached to their own digital inventories, or create an appended website like MyHistoricLA.  This portal or website could offer training modules to citizens on cultural heritage recording practices and afterwards ask them to collect and upload descriptive information, statistics, pictures, videos, and maps on historic resources in their neighborhoods.  The information uploaded to this portal could be screened and vetted by authorities before permanently adding it to the digital repository, ensuring quality control.  In this way, local governments and cities could gather and preserve vast amounts of data related to their cultural heritage in a short period of time and at minimal cost.  Furthermore, such a strategy also fosters civic pride, a sense of community, and a deeper, more tangible connection to the city’s past, particularly for younger generations who are adept at using technology.  It also offers peace of mind knowing that if and when a disaster occurs that as much cultural heritage as possible has been preserved for future generations. 

August 26, 2014 in Comparative Land Use, Comprehensive Plans, Historic Preservation, History, Urbanism | Permalink | Comments (0)

Monday, August 11, 2014

Posting from New Orleans (No. 2) -- Reviving Inner-City Neighborhoods: the Challenges of Teaching and Doing Urban Revitalization Work

This is the second in a series of posts from New Orleans. The first appeared last Monday, August 4th. As I promised in that first piece, today we’re just beginning to take a walk down one of New Orleans’ historic commercial corridors, Oretha Castle Haley Boulevard (O.C. Haley Blvd.), which is named after a leading local civil rights activist. Today’s post looks at the fortuitous intersection between post-Katrina federally-funded long-term recovery programs and the extensive pre-storm efforts of O.C. Haley Boulevard activists and stakeholders to reclaim this historic corridor.

IMG_0819[1]

Photo (2014):  O.C. Haley Boulevard looking northwest toward the Central Business District (CBD)

In the decades leading up to the 1960s, O.C. Haley Boulevard (formerly known as Dryades Street) was one of the principal shopping destinations for black families and also a pre-Civil Rights Era hub for the City’s best black musicians. During the 50 years since the mid-1960s, O.C. Haley withered a little more each passing year. First, the corridor lost in increasing numbers its shoppers; then its businesses began to close; and then families in surrounding blocks began to move away. Finally, in the years leading up to Hurricane Katrina, the Boulevard started losing its architecturally distinguished commercial structures – one by one.

Blog -- Research -- Photo of Burning Myrtle Banks School
Photo (2008):  Fire destroys the interior of another of the Boulevard's important historic structures, the circa 1902 Myrtle Banks School.

Earlier this spring, in his CityLab article, The Overwhelming Persistence of Neighborhood Poverty, Richard Florida tacitly suggests that O.C. Haley’s fate has been the fate of our oldest urban neighborhoods all across the country.  Florida’s article, citing a May 2014 study by Joseph Cortright and Dillon Mahmoudi, disclosed a number of fascinating tidbits about cities, but the statistic that really jumped out is this one: since 1970 “for every single gentrified [urban] neighborhood, 12 once-stable neighborhoods have slipped into concentrated disadvantage.”

That statistic about declining inner city neighborhoods stopped me in my tracks. As long as I can remember, I’ve been fascinated by two things: old inner city neighborhoods (my dad is a preservation architect) and the Red Sox (born and raised in Boston). This is to say that I'm easily captivated by box score style statistics, such as the one Florida cites.  I'm also no stranger to extended periods of adversity for the teams I love. But I clearly did not have an accurate idea of the extent to which so many inner city neighborhoods had faced such long odds for so long a period of time.

The statistic Florida cites concerning the decline of inner city neighborhoods got me to thinking about what I taught my land use students last semester. If our land use, local government, real estate finance, and community and economic development clinic students aim to work in cities, Richard Florida is telling us that they have their work cut out for them. The data suggests there are many hundreds of O.C. Haley-like Boulevards across the country.

Of course the problem of distressed inner city communities is not new. As we all know, lawyers have for years played critical roles in representing community groups, developers, banks, philanthropic funders, and local government clients on every side of urban revitalization deals. But Florida’s article reminded me how large the challenge of neighborhood revitalization looms for cities. There’s a lot of ground to cover in a basic land use class, but I found myself asking what my students and I learned this past semester that would help them do this work better or smarter. The short answer is that we squeezed in as much time as we could to study the redevelopment ‘tool box’ a city and its neighborhood organizations can use to stabilize and revitalize neighborhoods: land trusts, land banks, eminent domain, code lien enforcement, tax credits, etc. But thinking about Florida’s article reminded me that this approach is missing a key element. After all, most of these stabilization and revitalization tools were available to young lawyers and planners and community groups for the better part of the 45-year period that Florida observes the rapid evaporation of inner-city neighborhood vitality.

In thinking about the statistics Florida discusses and about the long decline of O.C. Haley Boulevard, it struck me that the conversation that I didn’t have this spring with the land use students is about the nature of urban revitalization work. It is often a slog. Some describe the work as being as slow and painfully incremental as ‘trench warfare.’ I prefer how some describe it as caring for a patient recovering from a debilitating life-threatening injury. That is, urban revitalization work concerns much more than strategic deployment of those redevelopment “tools.” It goes far beyond helping your client close on tax credit financing for a major catalytic redevelopment project. Rather, it also depends on the patient persistence of a diverse team of ‘caregivers’ over a long period of time. Some of those ‘caregivers’ are internal to the community. They are the local merchants associations and neighborhood advocacy groups. They are also the local community development corporations, code enforcement staff, city councilpersons, assistant city attorneys, philanthropic foundation program officers, and the law school clinics with neighborhood organization clients.  Neighborhood revitalization ordinarily requires keeping at least part of these diverse teams together for years – often more than a decade. In other words, it is worth discussing with our students that while they need to know the law and understand the nuances of the ‘tools’, the work of revitalizing a neighborhood is not usually just a transactional matter, but it is much more an organic process.

Kathy Laborde, is President and CEO of Gulf Coast Housing Partnership, one of Louisiana’s leading developers of commercial and residential projects serving low and moderate income communities. Beginning in the late 1990s as a community development banker, Laborde has worked with representatives of the O.C. Haley Boulevard neighborhood on redevelopment projects. Prior to Hurricane Katrina she also moved her development firm’s offices onto the Boulevard. Like the neighborhood merchants association and local community groups, Laborde knew O.C. Haley Boulevard had enormous potential to rebound – even as most New Orleanians ignored the corridor and consciously avoided it for fear of encountering the  crime for which the Boulevard had become known. Together with a strong and cohesive band of neighborhood advocates, she has long been a steadfast proponent of revitalizing the Boulevard. In a meeting in her office earlier this month, I asked her why, in the late 1990s, she and neighborhood leaders believed that they could turn around the Boulevard’s fortunes.

In the next blog post, we look at snapshots of the Boulevard's challenging 15 year journey through and beyond Hurricane Katrina to an active neighborhood renaissance that continues to catch the attention of both the city's visitors and long-time residents.

John Travis Marshall, Georgia State University College of Law

August 11, 2014 in Community Economic Development, Development, Economic Development, Historic Preservation, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0)

Tuesday, August 5, 2014

Historic Preservation Law in a Nutshell

As this is my maiden voyage into the blogosphere, I thought I’d share with you my passion for historic resources and their preservation along with an exciting recent publication. Before ever dreaming of law, or legal academia for that matter, I was studying medieval British history at Oxford University. Due to many experiences in the UK—handling and reading thousand-year-old vellum documents on a regular basis; participating in voluntary archaeological digs for Anglo-Saxon settlements; mapping the phases of urban growth in Oxford; charting extant Romanesque and Gothic survivals in old Oxford buildings and sharing these discoveries with others—I realized more fully how the past enriches the present, and how without an understanding of what has come before, our own lives are less complete.

I’ll never forget eating pizza on the second floor of an old restaurant in Oxford. While munching on a slice, I looked over at one of the walls. During renovations the owners discovered 16th century wall paintings depicting the symbiotic relationship between plants and humans and took steps to preserve these paintings, incorporating them into the ambience of a modern pizza joint. This visible connection between the past and present made me muse about all the people who had eaten (or lived) in this building before, and it made mediocre pizza taste like manna.

Laws governing the management of tangible historic resources—often referred to as Historic Preservation Law and/or Cultural Heritage Law—are rounding into maturity. Given that historic resources encompass many types of law (property law, land use law, natural resources law, environmental law, Native American law) and traverse local, state, tribal, federal and international jurisdictions, there has long been a need for a resource that speaks to those jurisdictions and varied types of law collectively, rather than in silos as the field is typically analyzed

Professor Sara Bronin (University of Connecticut School of Law) and I have recently published such a resource with West Academic: Historic Preservation Law in a Nutshell.

Historic Preservation Law in a Nutshell

Here is the publisher's blurb: “Historic Preservation Law in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.”

Professors who would like to review a print copy of this title may request a complimentary copy by contacting their West Academic Publishing Account Manager at accountmanager@westacademic.com

Click this link to go to Amazon where hardcopy and E-book formats can be purchased.  

I hope that this book can be of use to you,  and I would welcome any feedback on how it may be improved in future editions.  

To some extent, all legal and policy decisions we make today--particularly those concerned with land--are predicated on the past.  And in knowing about and respecting the past, we learn more about ourselves.  As Shakespeare wrote in the Tempest, "What's Past is Prologue".  

Ryan Rowberry

(Ryan's Web Profile and Email)

 

 

 

August 5, 2014 in Architecture, Historic Preservation, Local Government, Planning, Property, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)

Wednesday, June 11, 2014

Congress of New Urbanism (courtesy of Yelp!)

Last week, Buffalo hosted the 22nd Congress for New Urbanism. With a constrained conference budget, I was planning on just scoping out the (numerous) public events. Then conference funding came through from a surprising source. I actually won free conference registration via Yelp! (yes it pays to  be elite). I am not sure what it says about academia when we have to look to social media to help with our research funding but I was happy to get in the door!

CNU 22 was a mixture of the inspirational and the mundane. It was amazing to see people from all over the country (and particularly so many from Buffalo) coming together to think about how to improve your communities. I bathed in the local pride (feeling the Buffalove as we say around here) and heard inspiring tales about efforts in Toronto, Minneapolis, DC, and Milwaukee. But nothing was actually radical. In some ways this is an encouraging story. It no longer seems crazy to argue that suburban sprawl is destroying community. I really didn't need convincing that we should have more walkable or bikable cities. There seems to be general agreement on what elements make for a thriving urban environment and largely agreement from the attendees on how to get there (community involvement, form based codes, economic development). Thus, while I enjoyed myself and met some fascinating folks I left the conference with an empty notebook. Maybe I just attended the wrong sessions, but I wonder what types of legal changes we might need, what type of property tools we can use, and of course who is gonna fund it all. Any suggestions?

June 11, 2014 in Community Design, Community Economic Development, Conferences, Downtown, Economic Development, Form-Based Codes, New Urbanism, Pedestrian, Planning, Smart Growth, Sprawl, Urbanism | Permalink | Comments (2)

Monday, April 7, 2014

Schindler on Unpermitted Urban Agriculture

Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming).  Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!).  Here's the abstract:

It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.

Jim K.

 

 

April 7, 2014 in Agriculture, Food, Local Government, Nuisance, Scholarship, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

CFP: Comparative Urban Law Conference

Here's an interesting sounding one!


Call For Participation : Comparative Urban Law Conference
June 30, 2014, London, England

The Fordham Urban Law Center is pleased to announce a call for participation for the Comparative Urban Law Conference, which will be held on Monday, June 30, 2014 at Loyola Hall, University of London. The Conference will gather legal and other scholars for a provocative, engaging conversation about the field of "urban law" from an international, comparative, and interdisciplinary perspective. The Conference will focus on the nature and boundaries of urban law as a discipline, which participants will explore through overlapping themes such as the structure of local authority and autonomy and the role of law in urban policy areas such as environmental sustainability, consumer protection, public health, housing, and criminal justice, among others. The goal is to facilitate an in-depth exploration across sub-specialties within the legal academy to help develop an understanding of urban law in the twenty-first century.

PAPER SUBMISSION PROCEDURE: Potential participants in panels and workshops throughout the day should submit a one-page proposal to Professor Nestor Davidson at ndavidson@law.fordham.edu. If you are already working on a draft paper, please include that draft with your submission, but participants do not need to have prepared a formal paper to join the conversation. The deadline for topic proposal submissions is Thursday, February 13. We will discuss potential publishing options available as a result of conference participation. Please contact Annie Decker at adecker2@law.fordham.edu with any questions.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the legal system's place in contemporary urbanism. See: http://law.fordham.edu/urbanlawcenter.htm for more information about our activities.

January 27, 2014 in Conferences, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Maloney on the Promotion of Urban Agriculture through Zoning

Stephanie Maloney (Notre Dame Law Review) has posted her note entitled Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 101 (2013).  Here's the abstract:

This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.

Jim K.

November 12, 2013 in Agriculture, Environmentalism, Food, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

Wiseman on Urban Energy

Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013.  The abstract:

The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.

Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.  

Matt Festa

July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Overdrive--Getty Exhibition on LA Development


OverdriveThis past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum.  It is a spectacular place for many reasons including land use and architecture.  Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990.  It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.  

My family and I really enjoyed the exhibition (as well as the Getty experience overall), so I encourage you to check it out, if possible, before it closes on July 21.  Even if you can't get there, I'd recommend the book about the Overdrive exhibition, which has most of the images.  
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Matt Festa

July 17, 2013 in California, Development, History, Local Government, Planning, Scholarship, Sprawl, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 1, 2013

How to Manage Smart Decline: Should We Demolish Vacant Buildings?

 

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.

Jessie Owley

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)

Friday, April 12, 2013

AALS Workshop on Poverty, Immigration and Poverty/Perry on Gentrification and Transracial Adoption

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.

Jim K.

April 12, 2013 in Property Theory, Race, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 9, 2013

Glaeser interview on Cities and Climate Change

As part of a radio show on the recently declared Anthropocene (we're already 8000 years into it!), Big Picture Science featured an interview with Ed Glaeser (Harvard-Economics) about how city living moderates rather than aggravates global warming. The Glaeser interview begins 22 minutes into the show.  Among other things, I learned that the entire population of the Earth could be housed on 1/10th-acre lots within the land area that makes up Texas. (I call the intersection down the block from Festa's house!) 

In arguing for urbanization as a vital greening strategy (or at least an alternative to hunter-gatherer existence), Glaeser draws upon his book, Triumph of the CIty.  Matt blogged about David Reiss's review of that book here.

Jim K.

April 9, 2013 in Climate, Environmentalism, Urbanism | Permalink | Comments (1) | TrackBack (0)

Sunday, March 24, 2013

The Debate over Richard Florida's views on the Creative Class: Richard Florida weighs in

For those of you who just cannot get enough of Richard Florida, the Daily Beast this week features an exchange between Joel Kotkin and Richard Florida on whether Florida's evolution as a proponent of cities being geared toward the "creative class" constitutes a full-scale retreat from his emphasis on this group as a generator of local and regional economic growth.  Florida's installment references a related piece on the importance of urban design that promotes personal interaction that he published in the Wall Street Journal back in July.

HT, Chris O'Byrne.

Jim K.

March 24, 2013 in Development, Downtown, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

February 20, 2013 in Environmental Law, Local Government, Planning, Scholarship, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2013

Anderson, MacDonald, Bluthenthal, & Ashwood on an Empirical Study of Reducing Crime with Zoning

James M. Anderson (RAND Corp.), John MacDonald (Penn--Criminology), Ricky Bluthenthal (Southern Cal--Medicine), and J. Scott Ashwood (RAND Corp.)  have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles, 161 University of Pennsylvania Law Review 699 (2013).  The abstract:

The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.

Looks like a fascinating interdisciplinary collaboration.

Matt Festa

February 13, 2013 in Crime, Scholarship, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Saturday, December 22, 2012

Urban Gun Violence

Today I stumbled across this compelling Associated Press story about how urban advocates have very mixed feelings about how the Newtown shootings have seemingly changed the national debate around gun control.

The moment also is causing some to reflect on the sudden change of heart. Why now? Why weren't we moved to act by the killing of so many other children, albeit one by one, in urban areas?

Certainly, Newtown is a special case, 6- and 7-year-olds riddled with bullets inside the sanctuary of a classroom. Even in a nation rife with violence, where there have been three other mass slayings since July and millions enjoy virtual killing via video games, the nature of this tragedy is shocking.

But still: "There's a lot of talk now about we have to protect our children. We have to protect all of our children, not just the ones living in the suburbs," said Tammerlin Drummond, a columnist for the Oakland Tribune.

In her column Monday, Drummond wrote about 7-year-old Heaven Sutton of Chicago, who was standing next to her mother selling candy when she was killed in the crossfire of a gang shootout. Also in Chicago, which has been plagued by a recent spike in gun violence: 6-year-old Aaliyah Shell was caught in a drive-by while standing on her front porch; and 13-year-old Tyquan Tyler was killed when a someone in a car shot into a group of youths outside a party.

Food for thought.

Jamie Baker Roskie

 

December 22, 2012 in Crime, New York, Race, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)