PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Wednesday, February 3, 2016

Public lands, common ground, and the smell of sagebrush after the rain

Jon Sagebrush

(photo by Jonathan Long)

The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.

But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.

A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.

Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).

But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.

Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.

Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.

Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.

With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.

So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.

I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.

We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.

 

 

February 3, 2016 in Land Use, Natural Resources | Permalink | Comments (0)

Sunday, January 31, 2016

Housing in a Time of Expanding Crisis @USFLaw

 

This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:

What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.

What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.

What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.

You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.
USF1

January 31, 2016 in Conferences, Home and Housing, Land Use, Landlord-Tenant, Law Reform, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recording and Title Issues, Takings | Permalink | Comments (0)

Monday, October 28, 2013

Fennell & Penalver on Exactions Law

Lee Fennell (Chicago) and Eduardo Penalver (Chicago) have posted Exactions Creep (Supreme Court Review) on SSRN.  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Steve Clowney

October 28, 2013 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

A Short History of the Highrise

A cool interactive film on The New York Times website can be found here.  It features great photos from the newspaper's archives.  They had me when the first photo was a shot across Central Park dated 1843.

Tanya Marsh

October 8, 2013 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

July 10th Professor's Corner Call to Discuss Koontz

Professors’ Corner:  Wednesday, July 10, 2013:  Koontz v. St. John’s River Water Management District:  A Significant Victory for Property Rights?

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of DIRT are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, July 10, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent.  Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i. 

For those that haven’t already seen it, here’s a link to the opinion:

http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf

Please join us Wednesday for this great program!

Tanya Marsh

July 8, 2013 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

Howdy from Old Savannah!

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Many many thanks to Steve, Ben, Tanya and Mark for having me.  As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School.  So what could Savannah Law School offer that would make it worth a move?    I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit. 

Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary).   Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School.   The faculty and staff I have joined make teaching law sooooooo much fun.   I have always had fun teaching law.  But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!

The Building.    Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years.   Listen to the date again -- 1790's.   The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye.  There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country.  This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters.  If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.  

The Students.  Our students have been awesome.   The students are highly talented, multi-versed and, like their faculty, adventurers.  They are kind, endearing and not without a little bit of pizzazz. 

Savannah Itself.  Savannah is one of the oldest cities in the U.S.   Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans).    But Savannah has more than just history.  There is SCAD.  There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere.   And the food is amazing.  

The Tree.  Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.  

Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.  

Later

Marc 

 

 

November 5, 2012 in Land Use, Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, October 1, 2012

The Elusive Keys to Gramercy Park

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Fascinating piece in the New York Times over the weekend about the only fenced and gated, private park in Manhattan -- Gramercy Park.  The focus of the article is the limited access to the park, exemplified by the 383 numbered keys granted to residents of the 39 buildings which surround the park and pay the annual assessment.  The two-acre park was established in 1831 by Samuel Ruggles as an ornamental park to be enjoyed by the residents of the mansions which lined it.  Gramercy Park has been fenced since 1831 and locked since 1844.  Lots of interesting historical details in the article about how the keys are made, distributed, and managed. 

Beyond the history, the most interesting thing to me about the article was the drum beat of thinly veiled criticism of the existence of a private park.  For example:

"Parkside residents rationalize that their communal front yard is privatized for its own protection. Besides, they, not the city it enhances, have footed its bills for nearly two centuries."

Another example:

"For connection-challenged mortals, though, the park is increasingly problematic to appreciate from within ..."

And finally:

"So unless you are among the fortunate few to rent or own property directly on Gramercy Park; are a member in very good standing of the National Arts Club, the Players club, the Brotherhood Synagogue, or Calvary-St. George's Church; or can splurge on a stay at the aggressively hip Gramercy Park Hotel, these coveted keys and the verdant two-acre jewel box they unlock are off limits to you, period. No exceptions are made."

So the "fortunate few" who have access to the "coveted keys and the verdant two-acre jewel box" have to "rationalize" the privatization of property that they, through a neighborhood association, own and pay to maintain.  The park is "off limits" to the rest of us, the "connection-challenged mortals."  So, what's up with the hostility to the exclusion of the public from private property?  Is this an urban mindset, where there is very little private greenspace but many public parks?  Am I unable to understand this attitude as a Midwesterner, where the opposite is true?

It does make me want to stay at the Gramercy Park Hotel so I can visit the park, however....

Tanya Marsh

October 1, 2012 in Land Use | Permalink | Comments (1) | TrackBack (0)

Friday, June 8, 2012

1 World Trade Center and the History of Skyscrapers

World Trade May 2012 II

I visited New York City a few weeks ago and stayed in a hotel at 42nd and 10th.  My room looked south, so although the weather was hazy for most of my visit, I could observe the construction of 1 World Trade Center and (I think) 4 World Trade Center. 

Although I was more than three miles north of the World Trade Center site, the 1 World Trade Center building is obviously significantly taller than any structure south of Times Square.  (I know, duh.  When it is completed in 2013, with its nearly 400 foot spire, 1 WTC will be the tallest building in the Western Hempishere and the third tallest building in the world.)  Following up on Steve's post regarding cranes on the top of skyscrapers, this photo more clearly shows the cranes on top of 4 World Trade Center.  Unfortunately, the top of 1 World Trade Center is obscured by clouds.

World Trade May 2012

All of this is background to introducing a really interesting article in today's New York Times regarding the history of skyscrapers.  I love the Streetscapes column in the Times -- they do a wonderful job of blending the history of New York City real estate with present issues.  This article is no exception.  My favorite tidbit:

In 1897 The Record and Guide, alarmed by a proposal for a building 2,000 feet high, protested that New York was open “to attack from the audacious real estate owner” who cared nothing about robbing light from the neighbors, adding, “All that is needed is a barbarian with sufficient money and lunacy.”

The article discusses the historical animosity towards skyscrapers in New York, and the political battles regarding the land use restrictions that were put in place after the turn of the last century.  The article begins and ends with a description of the construction of 1 World Trade Center, concluding:

No one talks seriously about banning skyscrapers anymore; indeed congestion has been in recent decades praised, not derided. And so we have before us the prospect of a tower one-third of a mile high, that will be considered a monument of civic pride, a literal triumph out of tragedy. What people would have said in the 1880s and 1890s is barely a footnote.

But as a law professor, of course, I love footnotes.

Tanya Marsh

June 8, 2012 in Land Use, Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, May 17, 2012

The Dangers of Unmarked Graves

Sometimes, when digging the foundation for a new structure, you find a few unmarked graves.  Or 1400+ unmarked graves. 

Tanya Marsh

May 17, 2012 in Land Use, Miscellaneous, Religious Land Use | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 16, 2012

The Death of a Town

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The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated.  The mining companies that caused the contamination and abandoned the mines are, of course, out of business.  The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”

Yet, the article also describes the people who didn't want to leave, despite every reason to do so.  The article describes the remaining residents:

A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”

A fascinating, and depressing story.

Tanya Marsh

May 16, 2012 in Land Use, Miscellaneous, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Monday, February 20, 2012

Making the Case for Sprawl

Christopher Mims profiles L. Brooks Patterson, the county executive of Oakland County, Michigan and the country's most vocal advocate of urban sprawl:

Let’s stop the hysteria and honestly ask ourselves what is sprawl? “Sprawl” is the unfortunate pejorative title government planners give to economic development that takes place in areas they can’t control. In reality, “sprawl” is new houses, new school buildings, new plants, and new office and retail facilities. “Sprawl” is new jobs, new hope and the fulfillment of lifelong dreams. It’s the American Dream unfolding before your eyes.

Steve Clowney

February 20, 2012 in Land Use | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 8, 2012

The Reverse Mount Laurel Doctrine

The always-interesting Ken Stahl highlights a recent land use case out of New Jersey.  In Sayreville v. 35 Club, the New Jersey Supreme Court held that the first amendment does not necessarily require a  municipality to allow the sitting of adult businesses, so long as adult ventures have adequate access to locations elsewhere in the metro region (even if those locations are across state borders).

Stahl dubs this "the bizarro Mount Laurel Doctrine" and argues that it has the potential to create new red light disctricts. He writes, "Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have."

Steve Clowney

February 8, 2012 in Land Use | Permalink | Comments (0) | TrackBack (0)

Thursday, December 22, 2011

Making New York Denser

Matt Yglesias pushes to "up zone" Manhatten:

[A]t a minimum if there are vacant lots or teardown candidates anywhere in Manhattan (and yes, these exist) or along subway lines it would be very much in the interests of the city and the country as a whole to build on them as densely as the market will bear. This is much greener than having the suburbs expand further, and besides which we should be allowing as many people as possible to get access to the great cities of the world.

Steve Clowney

December 22, 2011 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, December 19, 2011

Is Property Still a Local Institution?

The New York Times runs an important story on the increasing tension between states and local governments over control of shale gas drilling:

The battle is playing out in Pennsylvania as the Republican-controlled legislature considers bills that would in their current form sharply limit a community’s right to control where gas companies can operate on private property. Critics say the final bill could vastly weaken local zoning powers and give industry the upper hand in exchange for a new tax, which municipalities badly need.

Steve Clowney

December 19, 2011 in Land Use | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 30, 2011

Zoning at 85

Edward McMahon of the Urban Land Institute mulls over the 85th anniversary of Euclid v. Ambler and comes to the conclusuion that although "some anti-government activists argue that we don’t need zoning and that land use planning is somehow akin to socialism. In fact, planning is the multi-faceted process that communities use to prepare for change."  Along the way he dismisses "myths" that "Houston, Texas disproves that zoning is unncessary" and that "zoning is un-American."

Steve Clowney

November 30, 2011 in Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

What is an Adult Use?

The D.C. Zoning Board gets hot & heavy trying to figure out what constitutes a "sexually oriented business:"

Meridith Moldenhauer . . . debated from the dais with BZA newbie Lloyd Jordan about whether entertainment had to be intentionally arousing to its audience in order to qualify as a SOBE, or if it could merely be incidental.

Video of the Zoning Board hearing can be found here (go to 3:38:51 for the relevent discussion).

Steve Clowney

November 14, 2011 in Land Use | Permalink | Comments (0) | TrackBack (0)

Friday, November 11, 2011

The Rise of the Mother-in-Law Apartment

The New York Times runs a story on the zoning changes that are making it possible for extended families to all live on the same lot:

California, Massachusetts, Vermont and Washington — have enacted laws encouraging or requiring changes to the zoning rules to permit the so-called accessory dwelling units.

Steve Clowney

November 11, 2011 in Land Use | Permalink | Comments (0) | TrackBack (0)

Thursday, November 10, 2011

Festa on Academic Writing in a Doctrinal Land Use Course

M-festaMatt Festa (South Texas) has posted Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course (Pace Envtl Law Review) on SSRN.  Here's the abstract:

Land use is a discipline that involves diverse academic, practical, and social perspectives; it is also an ideal subject for applying nontraditional teaching methods, including those suggested by the “best practices” movement in legal education. In this article - a contribution to the “Practically Grounded” conference on teaching land use and environmental law - I suggest that a scholarly research and writing focus can help students develop their practical and analytical skills and values while achieving “best practices” goals in the context of a doctrinal land use course. In the article I set forth a pedagogical basis for including an academic writing component in a doctrinal land use course; and I discuss the experience of teaching a large land use class with a significant research and writing component. The benefits from an academic writing focus may also apply to teaching in other doctrinal fields.

Steve Clowney

November 10, 2011 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, October 17, 2011

Property In My Dance Moves

An article at Slate discusses the requirements for claiming a property interest in a set of dance moves.  The piece then reports that "Beyoncé may have cribbed dance moves from a Belgian choreographer, Anne Teresa de Keersmaeker, for her new music video “Countdown.”  See for yourself:

Bonus fun: The article looks into the zoning implications of the movie Footloose.

Steve Clowney

October 17, 2011 in Intellectual Property, Land Use | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Cattle Ranchers, Environmentalists, and the Keystone XL Pipeline

20111001_USM927 There is an interesting article in The Economist regarding the proposal to bring the Keystone XL oil pipeline from the tar sands of Alberta, Canada to Texas.  The new pipeline will cross Montana, South Dakota, Nebraska, Kansas, and Oklahoma on its way to Port Arthur, but apparently it is the Cornhuskers who are raising the biggest stink.  The main reason is concern about potential contamination of the Ogallala aquifer:

"Many Nebraskans are worried that a leak from the pipeline might pollute the Ogallala aquifer, a vast underground reservoir that stretches from South Dakota to Texas and provides Nebraska with almost all its tap water and irrigation. The aquifer rises especially close to the surface in the Sand Hills region in the north of the state, near Mrs Luebbe’s ranch. The water table is so high, explains one of her neighbours, that if you drive a piece of piping three or four feet into the ground, water clean enough to drink will start gushing out."

The article doesn't explain how TransCanada will acquire the rights to bring the pipeline through the United States, but I presume that eminent domain will be involved.  That's interesting, since apparently the pipeline so unpopular in Nebraska that even the state's Republican governor has written to Hillary Clinton, asking her to refuse the required permits unless TransCanada modifies the pipeline's route.

Tanya Marsh

October 3, 2011 in Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)